ThE IllINOIS ASSOCIATION OF DEFENSE TRIAl

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The Illinois Association of Defense Trial Counsel

Third Quarter 2017 l Volume 27, Number 3 l ISSN-2169-3668

Illinois Association of Defense Trial Counsel WWW.IADTC.ORG PRESIDENT MICHAEL L. RESIS SmithAmundsen LLC, Chicago PRESIDENT-ELECT BRADLEY C. NAHRSTADT Lipe, Lyons, Murphy, Nahrstadt & Pontikis, Ltd., Chicago 1ST VICE PRESIDENT WILLIAM K. MCVISK Johnson & Bell, Ltd., Chicago 2ND VICE PRESIDENT NICOLE D. MILOS Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC, Chicago SECRETARY/TREASURER LAURA K. BEASLEY Joley, Oliver & Beasley, P.C., Belleville DIRECTORS DENISE BAKER-SEAL Brown & James, P.C., Belleville ELIZABETH K. BARTON Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, Chicago JOSEPH A. BLEYER Bleyer and Bleyer, Marion ADAM C. CARTER Cray Huber Horstman Heil & VanAusdal LLC, Chicago R. MARK COSIMINI Rusin & Maciorowski, Ltd., Champaign BRUCE DORN Bruce Farrel Dorn & Associates, Chicago JAMES P. DuCHATEAU HeplerBroom LLC, Chicago DONALD PATRICK ECKLER Pretzel & Stouffer, Chartered, Chicago TERRY A. FOX Flaherty & Youngerman, P.C., Chicago EDWARD K. GRASSÉ Busse, Busse & Grassé, P.C., Chicago JOHN P. HEIL, JR. Heyl, Royster, Voelker & Allen, P.C., Peoria DAVID A. HERMAN Giffin, Winning, Cohen & Bodewes, P.C., Springfield SETH LAMDEN Neal, Gerber & Eisenberg LLP, Chicago GREGORY W. ODOM HeplerBroom LLC, Edwardsville DONALD J. O’MEARA, JR. Pretzel & Stouffer, Chartered, Chicago CECIL E. PORTER, III Litchfield Cavo, LLP, Chicago KIMBERLY A. ROSS Ford & Harrison LLP, Chicago TRACY E. STEVENSON Law Office of Tracy E. Stevenson, P.C., Chicago MICHELLE M. WAHL Swanson, Martin & Bell, LLP, Chicago JOHN F. WATSON Craig & Craig, LLC, Mattoon JENNIFER A. WINKING Scholz, Loos, Palmer, Siebers & Duesterhaus, Quincy EXECUTIVE DIRECTOR Sandra J. Wulf, CAE, IOM PAST PRESIDENTS: Royce Glenn Rowe • James Baylor • Jack E. Horsley • John J. Schmidt • Thomas F. Bridgman • William J. Voelker, Jr. • Bert M. Thompson • John F. Skeffington • John G. Langhenry, Jr. • Lee W. Ensel • L. Bow Pritchett • John F. White • R. Lawrence Storms • John P. Ewart • Richard C. Valentine • Richard H. Hoffman • Ellis E. Fuqua • John E. Guy • Leo M. Tarpey • Willis R. Tribler • Alfred B. LaBarre • Patrick E. Maloney • Robert V. Dewey, Jr. • Lawrence R. Smith • R. Michael Henderson • Paul L. Price • Stephen L. Corn • Rudolf G. Schade, Jr. • Lyndon C. Molzahn • Daniel R. Formeller • Gordon R. Broom • Clifford P. Mallon • Anthony J. Tunney • Douglas J. Pomatto • Jack T. Riley, Jr. • Peter W. Brandt • Charles H. Cole • Gregory C. Ray • Jennifer Jerit Johnson • Stephen J. Heine • Glen E. Amundsen • Steven M. Puiszis • Jeffrey S. Hebrank • Gregory L. Cochran • Rick Hammond • Kenneth F. Werts • Anne M. Oldenburg • R. Howard Jump • Aleen R. Tiffany • David H. Levitt • Troy A. Bozarth • R. Mark Mifflin

COLUMNISTS Melissa A. Anderson — Cassiday Schade LLC, Chicago James K. Borcia — Tressler LLP, Chicago Lindsay Drecoll Brown — Cassiday Schade LLP, Chicago Julie A. Bruch — O’Halloran Kosoff Geitner & Cook, LLC, Northbrook Roger R. Clayton — Heyl, Royster, Voelker & Allen, P.C., Peoria James P. DuChateau — HeplerBroom LLC, Chicago Donald Patrick Eckler — Pretzel & Stouffer, Chartered, Chicago John Eggum— Foran Glennon Palandech Ponzi & Rudloff P.C., Chicago John P. Heil, Jr. — Heyl, Royster, Voelker & Allen, P.C., Peoria Scott L. Howie — Pretzel & Stouffer, Chartered, Chicago Brad W. Keller — Heyl, Royster, Voelker & Allen, P.C., Peoria Tara Wiebusch Kuchar — HeplerBroom LLC, Edwardsville Edna L. McLain — HeplerBroom LLC, Chicago Michael L. Resis — SmithAmundsen LLC, Chicago John F. Watson — Craig & Craig, LLC, Mattoon

CONTRIBUTORS Elizabeth K. Barton — Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., Chicago Andrew C. Corkery — Boyle Brasher LLC, Belleville Andrew Clott — DeVore Radunsky LLC, Chicago Mary H. Cronin — Pretzel & Stouffer, Chartered, Chicago Jason E. DeVore — DeVore Radunsky LLC, Chicago Dustin S. Fisher — Judge, James, Hoban & Fisher, LLC, Park Ridge Mark D. Hansen — Heyl, Royster, Voelker & Allen, P.C., Peoria R. Mark Mifflin — Giffin, Winning, Cohen & Bodewes, P.C., Springfield Steven A. Montalto — Cassiday Schade LLP, Chicago Circuit Judge Donald J. O’Brien, Jr. (Ret.) — Circuit Court of Cook County, Illinois John M. O’Driscoll — Tressler LLP, Bolingbrook Emily J. Perkins — Heyl, Royster, Voelker & Allen, P.C., Peoria Charles P. Rantis — Johnson & Bell, Ltd., Chicago Michael P. Sever— Foran Glennon Palandech Ponzi & Rudloff P.C., Chicago J. Matthew Thompson — Heyl, Royster, Voelker & Allen, P.C., Peoria

IDC QUARTERLY

EDITORIAL BOARD Tara Wiebusch Kuchar, Editor-in-Chief HeplerBroom LLC, Edwardsville [email protected] J. Matthew Thompson, Executive Editor Heyl, Royster, Voelker & Allen, P.C., Peoria [email protected] Catherine A. Cooke, Associate Editor Robbins, Salomon & Patt, Ltd., Chicago [email protected] Jeremy T. Burton, Assistant Editor CNA Insurance Company, Chicago [email protected] James P. DuChateau, Assistant Editor HeplerBroom LLC, Chicago [email protected] Britta Sahlstrom, Assistant Editor SmithAmundsen LLC, Chicago [email protected]

IN THIS ISSUE Monograph M-I

The Tort Immunity Act, by Dustin S. Fisher, John M. O’Driscoll, Elizabeth K. Barton and Emily J. Perkins

Feature Articles 12

When “Reasonable” is Unreasonable: ALI’s Proposed Final Draft of the Restatement of Law Liability Insurance, by R. Mark Mifflin and Donald Patrick Eckler

26

Seventh Circuit Expands Title VII of the Civil Rights Act of 1964 to Include Discrimination on the Basis of Sexual Orientation in Hively v. Ivy Tech Community College of Indiana, by Donald Patrick Eckler and Mary H. Cronin

34 Limitations of Liability Actions for the Non-Admiralty Practitioner, by Andrew C. Corkery 43

Seat Belt Evidence Inadmissible? Not So Fast., by Circuit Judge Donald J. O’Brien, Jr. (Ret.) and Charles P. Rantis

The IDC Quarterly is the official publication of the Illinois Association of Defense Trial Counsel. It is published quarterly as a service to its members. Subscriptions for non-members are $100 per year. Single copies are $25 plus $5 for postage and handling. Requests for subscriptions or back issues should be sent to the Illinois Association of Defense Trial Counsel headquarters in Rochester, Illinois. Subscription price for members is included in membership dues.

52 Public Policy and the Art of Drafting Conforming Insurance Policies, by Jason E. DeVore

Manuscript Policy

48 Civil Practice and Procedure, by Donald Patrick Eckler and Michael P. Sever

Members and other readers are encouraged to submit manuscripts for possible publication in the IDC Quarterly, particularly articles of practical use to defense trial attorneys. Manuscripts must be in article form. A copy of the IDC Quarterly Stylistic Requirements is available upon request from The Illinois Association of Defense Trial Counsel office in Rochester, Illinois. No compensation is made for articles published, and no article will be considered that has been submitted simultaneously to another publication or published by any other publication. All articles submitted will be subjected to editing and become the property of the IDC Quarterly, unless special arrangements are made. Statements or expression of opinions in this publication are those of the authors and not necessarily those of the Association or Editors. Letters to the Editor are encouraged and welcome, and should be sent to the Illinois Association of Defense Trial Counsel headquarters in Rochester, Illinois. Editors reserve the right to publish and edit all such letters received and to reply to them. IDC Quarterly, Third Quarter 2017, Volume 27, No. 3., Copyright © 2017 The Illinois Association of Defense Trial Counsel. All rights reserved. Reproduction in whole or in part without permission is prohibited. THE ILLINOIS ASSOCIATION OF DEFENSE TRIAL COUNSEL • P.O. Box 588 • Rochester, IL 62563-0588 800-232-0169 • 217-498-2649 • FAX 866-230-4415 [email protected] • www.iadtc.org SANDRA J. WULF, CAE, IOM, Executive Director

Columns 20

Appellate Practice Corner, by Scott L. Howie



Association News

62



58

Civil Rights Update, by John P. Heil, Jr.



31

Commercial Law, by James K. Borcia



55

Construction Law, by Lindsay Drecoll Brown and Steven A. Montalto



11

Editor’s Note, by Tara Wiebusch Kuchar



40

Employment Law, by Julie A. Bruch



45

Evidence and Practice Tips, by Brad W. Keller



23

Health Law, by Roger R. Clayton, Mark D. Hansen and J. Matthew Thompson



2

IDC 2017 – 2018 Board of Directors



7

IDC 2017 – 2018 Committee Chairs and Vice Chairs



76

IDC Membership and Committee Applications



71

IDC New Members



72

Illinois Deposition Academy Registration



38

Insurance Law Update, by Melissa A. Anderson



18

Legislative Update, by John Eggum



16

Medical Malpractice Update, by Edna L. McLain



9

President’s Message, by Michael L. Resis



32

Professional Liability, by John F. Watson



61

Young Lawyers Report, by James P. DuChateau Third Quarter 2017 | IDC QUARTERLY | 1

2017-2018

OFFICERS and DIRECTORS

President MICHAEL L. RESIS SmithAmundsen LLC Chicago

DENISE BAKERSEAL Brown & James, P.C. Belleville

President-Elect BRADLEY C. NAHRSTADT

First Vice President WILLIAM K. McVISK

Second Vice President NICOLE D. MILOS

Secretary/Treasurer LAURA K. BEASLEY

Johnson & Bell, Ltd. Chicago

Cremer, Spina, Shaughnessy, Jansen & Siegert LLC Chicago

Joley, Oliver & Beasley Belleville

Lipe Lyons Murphy Nahrstadt & Pontikis, Ltd. Chicago

ELIZABETH K. BARTON JOSEPH A. BLEYER

ADAM C. CARTER

R. MARK COSIMINI

Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C. Chicago

Cray Huber Horstman Heil & VanAusdal LLC Chicago

Rusin & Maciorowski, Ltd. Champaign

Bleyer and Bleyer Marion

BRUCE DORN

JAMES P. DuCHATEAU

Bruce Farrel Dorn & Associates Chicago

HeplerBroom LLC Chicago

2 | IDC QUARTERLY | Third Quarter 2017

DONALD PATRICK ECKLER Pretzel & Stouffer, Chartered Chicago

TERRY A. FOX Flaherty & Youngerman, P.C. Chicago

EDWARD K. GRASSÈ

GREGORY W. ODOM

TRACY E. STEVENSON

Busse, Busse & Grassé, P.C. Chicago

HeplerBroom LLC Edwardsville

Law Office of Tracy E. Stevenson, P.C. Chicago

JOHN P. HEIL, JR.

DONALD J. O’MEARA, JR.

Heyl, Royster, Voelker & Allen, P.C. Peoria

Pretzel & Stouffer, Chartered Chicago

Swanson, Martin & Bell, LLP Chicago

DAVID A. HERMAN

CECIL E. PORTER, III

JOHN F. WATSON

MICHELLE M. WAHL

Giffin, Winning, Cohen & Bodewes, P.C. Springfield

Litchfield Cavo LLP Chicago

SETH D. LAMDEN

KIMBERLY A. ROSS

JENNIFER A. WINKING

Neal, Gerber & Eisenberg LLP Chicago

Ford & Harrison LLP Chicago

Scholz, Loos, Palmer, Siebers & Duesterhaus Quincy

Craig & Craig, LLC Mattoon

Third Quarter 2017 | IDC QUARTERLY | 3

IDC Leadership Congratulations to the Newly Elected and Appointed Members of the IDC Board of Directors James P. DuChateau is a partner in the Chicago office of HeplerBroom L L C, w h er e h e concentrates his practice in the ar eas of in s u rance coverage and commercial law in state and federal courts throughout the Midwest and Mountain West, including the investigation and litigation of first-party property claims, commercial general liability defense, prosecution of declaratory matters for non-coverage under personal and commercial policies and the defense of bad faith and extra contractual liability matters. Jim counsels both property and casualty carriers during the claim process, and regularly represents Illinois financial institution clients in both UCC and REO matters, as well as trade secret and restrictive covenant litigation. Edward K. Grassé concentrates his practice on civil litigation, construction litigation, and insurance coverage. He earned his B.S. in political science and sociology from Northern Illinois University, and his J.D. with Honors from Chicago-Kent College of Law. Mr. Grasse’s experience has focused on the defense of civil cases, including the E2 nightclub case, the 4 | IDC QUARTERLY | Third Quarter 2017

Taste of Chicago Salmonella cases, and the Holy Name Cathedral fire case. He currently serves on the Board of Directors for the Illinois Defense Counsel. He is also the former chair of the Illinois Defense Counsel’s Civil Practice Committee and former author of the Civil Practice column for the IDC Quarterly. He also serves on the Judicial Evaluation Committee and the Legislative Committee of The Chicago Bar Association. John P. Heil, Jr. is a partner with the law firm of Heyl, Royster, Voelker & Allen, P.C. and handles matters in the firm’s Peoria and Chicago offices. John focuses his practice on business and commercial litigation, complex civil rights litigation, the representation of insurance carriers in liability coverage disputes, and the defense of catastrophic tort claims. John is a Vice-Chair of the firm’s Business and Commercial Litigation Practice, Chair of the Peoria office’s Drone Law Practice, and the head of the Peoria office’s mentoring program. John’s business and commercial practice includes litigating cases involving allegations of breach of contract, fraud, and deceptive business practices on behalf of large and small businesses and their employees throughout the state. John is also heavily involved in the defense of federal civil rights actions and associated state law claims leveled

against members of the law enforcement community and other public officials. In this context, John routinely defends allegations of false arrest, excessive force, deliberate indifference, and denial of due process of law. John joined Heyl Royster in 2007 after serving for eleven years as a trial attorney with the Cook County State’s Attorney’s Office. He received his J.D., with Honors, from Chicago-Kent College of Law in 1996. David A. Herman is a partner at the law firm of Giffin, Winning, Cohen & Bodewes, P.C. in Springfield, and has been with the firm since being admitted to practice in 1992. He has been a member of the Illinois Association of Defense Trial Counsel for several years, and currently serves as the IDC Legislative Committee Vice Chair. He is admitted to practice in the U.S. District Court for the Northern, Central, and Southern Districts of Illinois, the Seventh Circuit Court of Appeals and the U.S. Supreme Court. In his 25 years of practice, David has handled hundreds of cases in Illinois state courts, appellate courts, federal courts, and before administrative agencies involving diverse areas of the law, including: Illinois procurement contract law, Illinois election law, Illinois residential real estate disclosure law, products liability law, health law, commercial law, constitutional law, construction law, municipal law, employment law, real estate law, administrative law, warranty law, outdoor advertising law, insurance coverage disputes, tort, fraud, property damage, insurance defense, contracts, tax, business disputes, and replevin.

These cases vary in value from small claims cases to cases involving contracts worth billions of dollars. David is also a registered lobbyist with the State of Illinois who represents clients before the Illinois General Assembly and Executive Branch. David is Peer Review Rated AV® Preeminent™ by Martindale-Hubbell. David currently serves as a part-time administrative hearing officer for the City of Springfield, Illinois, as a part-time administrative hearing examiner for the Illinois State Board of Elections, and as a member of the City of Springfield Civil Service Commission. Seth D. Lamden is a partner in the insurance policyholder practice group of Neal, Gerber & Eisenberg in Chicago. He concentrates his legal practice on assisting policyholders in enforcing their rights to insurance coverage and has been instrumental in recovering hundreds of millions of dollars in insurance proceeds for policyholders from a broad array of industries. Seth has been a member of the IDC since 2003 and is the current chair of the IDC’s Insurance Law Committee. He also served as the chair of the IDC’s Insurance Law Committee in 2013. Seth has written nine book chapters and authored or coauthored more than 40 articles on topics relating to insurance coverage, including nine articles that appeared in the IDC Quarterly. He also has been a featured speaker at more than 35 insurance law seminars, including five IDC seminars. He received an IDC President’s Commendation for his role in organizing the IDC Risk Transfer Workshop in 2013. Seth was profiled as one of “40 Illinois

Attorneys Under Forty to Watch” by the Law Bulletin Publishing Company and he is listed in The Best Lawyers in America© (Insurance), Illinois Super Lawyers—Insurance Coverage, and the Leading Lawyers Network—Insurance Coverage & Reinsurance Law. He also maintains a Martindale-Hubbell AV® Preeminent™ rating (Peer Review Rating 5.0 out of 5.0). Gregory W. Odom is partner in the Edwardsville office of HeplerBroom LLC, where he focuses his practice on commercial, premises liability, toxic tort, and product liability litigation. Mr. Odom has represented individuals, local businesses, and Fortune 500 companies in Illinois and Missouri state and federal courts. He has successfully tried multiple cases to verdict and has successfully argued before the Illinois Court of Appeals. Mr. Odom received his B.A. from Southern Illinois University in Carbondale in 2005 and his J.D. from Southern Illinois University in 2008. He is Chair of the Events Committee for the IDC and a co-chair of the Mentoring-to-Mentoring Program administered by the IDC and Illinois Supreme Court Commission on Professionalism. In addition to his membership in the IDC, Mr. Odom is a member of the Madison County and St. Clair County Bar Associations. He also serves as an arbitrator for the Third Judicial Circuit Court-Annexed Mandatory Arbitration Program.

Cecil E. Porter, III of Litchfield Cavo, LLP in Chicago, focuses his practice in the areas of construction litigation, toxic tort litigation, commercial litigation, employers’ liability, contractual disputes, auto liability, premises liability, and workers’ compensation. He has served as first and second chair of jury trials that he has tried to verdict both in private practice and while serving as a prosecutor. He has also served as first chair of many bench trials, arbitration hearings, and workers’ compensation appeals. Cecil served as an editor on and contributor to the Tort section of the IDC 2012 Survey of Law. He also contributed to Commercial Litigation section, as well as the Civil Practice and Tort sections of the IDC 2011 Survey of Law. Cecil was listed as one of Illinois’ Super Lawyers Rising Stars, a select designation only given to 2.5% of the total lawyers in Illinois, from 2011 through 2015. He was also selected as an Emerging Lawyer in the 2015 and 2016 listing by Leading Lawyers magazine. Kimberly A. Ross is a partner in the Chicago office of Ford & Harrison LLP. She concentrates her legal practice on defending and counseling management in employment law matters. Kimberly’s experience includes harassment and discrimination claims under Title VII and the Illinois Human Rights Act, — Continued on next page

Third Quarter 2017 | IDC QUARTERLY | 5

IDC Leadership | continued

the ADEA, ADA, FMLA, and FLSA, as well as non-compete agreements, whistleblower claims, negligent hiring, supervision and retention, and retaliatory discharge. Ms. Ross conducts seminars, provides training on proper employment practices including hiring, effective discipline and discharge, performing investigations, maintaining personnel files, and properly classifying employees under the FLSA, and reviews and drafts employee handbooks, employment policies, employment contracts, and severance agreements.  She received her undergraduate degree from the University of Michigan in 1992 and her J.D. from DePaul University College of Law in 1996. She is a past Editor of the IDC Quarterly. John F. Watson has been an attorney with Craig & Craig in the Mattoon office since July of 1999. He became a partner with the firm in 2003 and continues to practice out of the Mattoon office. Mr. Watson’s fields of practice include general civil litigation, medical malpractice defense, municipal liability defense, insurance coverage and insurance law, intellectual property, and criminal defense litigation. Mr. Watson graduated with a Bachelor of Science in Mechanical Engineering from Bradley University in 1990 and received his Juris Doctorate, with Honors, from The John Marshall Law School in 1993. During law school, Mr. Watson served as an Associate Editor for The John Marshall Law Review. Mr. Watson began his practice in criminal law as an Assistant State’s Attorney and was quickly elevated to a 6 | IDC QUARTERLY | Third Quarter 2017

felony prosecutor. In 1997, Mr. Watson took a position as the Special Assistant Drug Prosecutor with the State’s Attorneys’ Appellate Prosecutor’s office, conducting drug prosecutions in the Fourth District of Illinois. In January of 1999, Mr. Watson became the First Assistant State’s Attorney in Coles County. In July of 1999, Mr. Watson was hired by the firm of Craig & Craig and has focused his practice in civil litigation, medical and professional liability matters and insurance coverage litigation. Mr. Watson is a registered Patent Attorney with the United States Patent and Trademark Office and handles Intellectual Property matters and criminal defense litigation. Mr. Watson served on the IDC Quarterly Editorial Board from 20122016 and served as the Editor in Chief from 2016-2017. Jennifer A. Winking is a partner with the Quincy law firm of Scholz, Loos, Palmer, Siebers, & Duesterhaus LLP, where she concentrates her practice on employment law and litigation and workers compensation defense. She has presented for the Illinois State Bar Association on topics of employment law and workers’ compensation and is a frequent lecturer on various employment topics, including harassment and sensitivity training. She earned her B.A. from Quincy University as a double major graduating summa cum laude and her J.D. from the University of Missouri-Columbia School of Law, where she was Managing Editor of the Missouri Law Review and was inducted into the Order of the Coif.

2017-2018

COMMITTEE CHAIRS and VICE CHAIRS

Craig L. Unrath, Chair Heyl, Royster, Voelker & Allen, Peoria 309-676-0400 [email protected]

EMPLOYMENT LAW COMMITTEE Bradley J. Smith, Chair Keefe, Campbell, Biery & Associates, LLC, Chicago 312-756-1800 [email protected]



John F. Watson, Vice Chair Craig & Craig, LLC, Mattoon 217-234-6481 [email protected]



AMICUS COMMITTEE

CIVIL PRACTICE COMMITTEE

Donald Patrick Eckler, Chair Pretzel & Stouffer, Chtd., Chicago 312-578-7653 [email protected]

CONSTRUCTION LAW COMMITTEE Holly C. Whitlock-Glave, Chair HeplerBroom LLC, Crystal Lake 815-444-0250 [email protected]

Jessica Holliday, Vice Chair Brown & James, P.C., Belleville 618-355-5127 [email protected]

EVENTS COMMITTEE

Gregory W. Odom, Chair HeplerBroom LLC, Edwardsville 618-656-0184 [email protected]



Kelly A. Pachis, Vice Chair Lowis & Gellen, LLP, Chicago 312-364-2500 [email protected]

INSURANCE LAW COMMITTEE

Lindsay D. Brown, Vice Chair Cassiday Schade, LLP, Chicago 312-641-3100 [email protected]



Seth D. Lamden, Chair Neal, Gerber & Eisenberg LLP, Chicago 312-269-8000 [email protected]



Michael L. Young, Vice Chair HeplerBroom LLC, St. Louis 314-241-6160 [email protected] — Continued on next page

Third Quarter 2017 | IDC QUARTERLY | 7

Committee Chairs and Vice Chairs | continued

LEGISLATIVE COMMITTEE Donald Patrick Eckler, Chair Pretzel & Stouffer, Chartered, Chicago 312-578-7653 [email protected]



John Eggum, Vice Chair Foran Glennon Palandech Ponzi & Rudloff, PC, Chicago 312-863-5000 [email protected]



David A. Herman, Vice Chair Giffin, Winning, Cohen & Bodewes, P.C., Springfield 217-525-1571 [email protected]

LOCAL GOVERNMENT LAW COMMITTEE John O’Driscoll, Chair Tressler, LLP, Bolingbrook 630-759-0800 [email protected]



Elizabeth K. Barton, Vice Chair Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, Chicago 312-782-7606 [email protected]

MEMBERSHIP COMMITTEE R. Howard Jump, Chair Jump & Associates, P.C., Chicago 312-925-6445 [email protected]

8 | IDC QUARTERLY | Third Quarter 2017

TORT LAW COMMITTEE Howard L. Huntington, Chair Bullaro & Carton, P.C., Chicago 312-831-1000 [email protected]



Jaime L. Padgett, Vice Chair Segal McCambridge Singer & Mahoney, Ltd., Chicago 312-329-6551 [email protected]

YOUNG LAWYERS DIVISION John Eggum, Chair Foran Glennon Palandech Ponzi & Rudloff, PC, Chicago 312-863-5000 [email protected]

Sheina R. Franco, Vice Chair Foley & Mansfield, PLLP, St. Louis 618-971-5199 [email protected]

President’s Message Michael L. Resis SmithAmundsen LLC, Chicago

It is a privilege to become the 53rd president of the IDC and to follow on the path set by so many past leaders of the defense bar. I am especially honored as the two named partners in my firm, Larry Smith and Glen Amundsen, were presidents of the IDC. In the coming year, during my term as your president, I hope to live up to the high standards of those who have come before me and of those with whom I have served as an officer for the past four years.

first IDC Spring Seminar in 1984, Bill came up to me, remembered me, and welcomed me into the IDC. Bill did not single me out; I am sure that he welcomed many other young lawyers with the same spirit of collegiality that made them feel that they truly belonged. He was a mentor and friend to many. Bill chaired the 1975 Spring Seminar, served as newsletter editor and Amicus Committee chairman, became a member of the Board of Directors, and became

Through the years, the IDC has stayed true to its

was one-of-a kind and will be missed by all those who knew him. More than 50 years ago, defense lawyers, imbued with the same sense of service to others as Bill Tribler, started the IDC to learn from one another and to advocate for fairness in the Illinois civil justice system. Through the years, the IDC has stayed true to its purpose. When we adopted our core values a few years ago, they were not merely aspirational; rather, they described what the IDC was already doing and was committed to doing going forward. The core values of the IDC have defined its mission from its founding: • •

•

purpose. When we adopted our core values a few years ago, they were not merely aspirational; rather, they described what the IDC was already doing and

•

was committed to doing going forward. • In my first message as president, I would like to remember one particular past president who played a major role in the IDC: Bill Tribler, whose passing was reported in The IDC Quarterly (Vol. 27, No.1). As president-elect of the IDC, I recently had the honor of speaking at a memorial for Bill. Coincidentally, Bill interviewed me for a summer associate position while I was still in law school, and was the first member of the IDC that I had met. When I attended my

the IDC’s 20th President in 1984. His contributions to the IDC did not end with his term in office. He won the IDC’s highest award, was the first editor of the IDC Quarterly, and became known to a new generation of readers through “The Defense Philosophy,” a column that he wrote in the IDC Quarterly for many years. In one of those columns, Bill wrote that when you are hired to try a case, you have to care. Bill cared; he cared about his cases, his clients, and the IDC. He

To promote and support a fair, unbiased and independent judiciary; To take positions on issues of significance to our membership, and to advocate and publicize those positions; To promote and support the fair, expeditious and equitable resolution of disputes, including the preservation and improvement of the jury system; To increase its role as the voice of the defense bar in Illinois, and make the IDC relevant to its members and the general public; and To support diversity within our organization, the defense bar and the legal profession.

Today, we continue our mission of member education and support by providing you with valuable resources that can make you a better attorney. We offer CLE courses and seminars around the state taught by IDC members and partner with other professional and business groups. To keep you informed — Continued on next page

Third Quarter 2017 | IDC QUARTERLY | 9

President’s Message | continued

of the latest developments in the law, we publish the IDC Quarterly, committee newsletters, position papers on specific issues and proposals, and the annual Survey of Law. We also maintain a website to provide you with updates on new cases and legislation and a forum for questions about experts that you can use in defending your cases. Because young lawyers are the future of the IDC, we will continue to reach out to them with a committee and programs aimed at their needs and interests. Every other year, we put on a trial academy to give young attorneys the opportunity to learn techniques of trial practice. In the off years, we run a deposition academy where experienced faculty teach young attorneys the basics. The Young Lawyers Division engages in social activities and raising money for worthy causes, including, most recently, a fundraiser to benefit Illinois legal aid organizations, and annual school supplies, clothing, and blood drives. Advocacy is essential to our mission and values. Our Legislative Committee, which is one of our most active committees, reviews bills pending in the General Assembly. Committee members work with sponsors to promote legislation to level the playing field in the civil justice system and, in other instances, play defense by opposing bills that would further undermine the fairness of the system. As part of our advocacy efforts, in addition to our Legislative Committee, we file amicus briefs in the Illinois Supreme Court on recurring issues that you face from time-to-time in your practice. Our Amicus Committee selects cases of interest and recruits volunteers to prepare briefs. Amicus briefs give reviewing courts the

10 | IDC QUARTERLY | Third Quarter 2017

We depend on volunteers for our programs, publications, and advocacy. We know that you have many demands on your time. If you are already involved, on behalf of my fellow officers, I say thank you. If you are not, get involved: you can write; you can present at or attend seminars; you can serve as faculty; you can write an amicus brief. The IDC offers opportunities for your professional development at every stage of your legal career; the field is wide open to you.

defense perspective and help shape the development of the law in Illinois. Most of all, our continued success and strength as an organization depend on you. We depend on volunteers for our programs, publications, and advocacy. We know that you have many demands on your time. If you are already involved, on behalf of my fellow officers, I say thank you. If you are not, get involved: you can write; you can present at or attend seminars; you can serve as faculty; you can write an amicus brief. The IDC offers opportunities for your professional development at every stage of your legal career; the field is wide open to you. We need your input and your support. Finally, on behalf of the IDC, I want to congratulate and thank Mark Mifflin for his many contributions as your president in 2016-17, and for his years of service in leadership positions in the IDC. Mark has a practical knowledge and experience in legislative matters that has served us well and raised the IDC’s profile in Springfield during challenging

times. Although Mark will be missed, I am confident that the Legislative Committee, now chaired by Patrick Eckler, with co-vice chairs John Eggum and David Herman, will continue to advocate for you and the IDC in Springfield. I also want to recognize and thank our Executive Director, Sandra Wulf, for a job well done year in and year out, my fellow officers, Brad Nahrstadt, Bill McVisk, Nicole Milos and Laura Beasley, and our board members and committee chairs and vice chairs, for their continuing service to the IDC. I am proud of the IDC and what it has accomplished for over 50 years, and I look forward to what we can do together in the coming year.

Editor’s Note Tara Wiebusch Kuchar HeplerBroom LLC, Edwardsville

I have been a sports fan as long as I can remember. I love watching them, I love playing them, and I love watching movies and documentaries about them. No doubt, this love affair stems from weekends watching football with my parents, summer evenings at Cardinals games, and winters watching the Blues. The trials and tribulations of athletic pursuits are compelling for countless reasons, but for me—teamwork is the greatest draw. Teamwork is obvious in team sports. As a proud Butler University alumna, I know that my beloved Bulldogs would not have made it to the championship game of the NCAA

Club, the clay courts of Roland Garros, or the hard courts of the US Open. Our courts are the courtrooms throughout Illinois. Like Roger Federer, our success is dependent on the skills we have honed over time and the experiences, insights, and lessons learned from our colleagues and staff. IDC members are especially fortunate because we can draw not just from our own experiences and those of others in our law firms, but from the collective experiences, insights, and lessons of the IDC membership that is composed of lawyers from all over Illinois. The IDC Quarterly is just one of the many vehicles used by IDC members to share their

IDC members are especially fortunate because we can draw not just from our own experiences and those of others in our law firms, but from the collective experiences, insights, and lessons of the IDC membership that is composed of lawyers from all over Illinois. Men’s Basketball Tournament in backto-back years without everyone working together. Teamwork is behind success in individual sports as well. Roger Federer recently won his eighth Wimbledon title because of skills honed over countless hours of coaching, training, and a drive for excellence. Defense lawyers are like Roger Federer (stick with me here). We do not play on the grassy courts of the All England

knowledge and insights. See, defense lawyers are just like Roger Federer… maybe not just like, but we do strive for excellence and success for ourselves and our clients and cannot get there on our own (that is probably the best stopping point for this analogy). This issue of the IDC Quarterly delivers an excellent collection of thoughtful content. Patrick Eckler and R. Mark Mifflin have prepared an excel-

lent article addressing The American Law Institute’s proposed final draft of the Restatement of the Law of Liability Insurance. Roger R. Clayton, Mark D. Hansen, and J. Matthew Thompson have authored a column about Gapinski v. Gujrati, and the impact the decision may have on the ability of a party to deliver its own opening and closing arguments and examine witnesses. The Legislative Update prepared by John Eggum highlights the Legislative Committee’s excellent work promoting the IDC’s commitment to a fair and unbiased judiciary. The Evidence and Practice Tips authored by Brad W. Keller addresses the importance of due diligence for alternative service. Julie Burch also provides a thorough collection of tips for trying employment cases in federal court. Finally, this issue is anchored by a robust Monograph, which provides a broad analysis of the Tort Immunity Act. Many thanks to John O’Driscoll, Elizabeth Barton, Dustin Fisher, and Emily Perkins for this impressive effort. These are but a few of the columns and articles in this issue. The IDC Quarterly has a well-earned reputation for excellence. That reputation is the result of the commitment of our members who routinely share their knowledge with our membership. A huge thank you to all of our authors. Thank you also to the Editorial Board—J. Matthew Thompson, Catherine Cook, Jeremy Burton, James DuChateau, and Britta Sahlstrom—for taking the time to edit each submission and collaborate with the authors to ensure the final product is “just right.” It is humbling that so many of our members volunteer their time so that all of us can be at our best as we advocate for our clients in courts throughout Illinois.

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Feature Article R. Mark Mifflin Giffin Winning, Cohen, & Bodewes, P.C., Springfield Donald Patrick Eckler Pretzel & Stouffer, Chtd., Chicago

When “Reasonable” is Unreasonable: ALI’s Proposed Final Draft of the Restatement of Law Liability Insurance1 The vast majority of members of the Illinois Association of Defense Trial Counsel have an especially keen interest in the law of liability insurance as it affects our clients and our practice. The American Law Institute (“ALI”) is currently engaged in a project involving defining liability law in the United States. The ALI effort started in 2010 as a Principles Project to express what academics thought the law of liability insurance should be. However, in 2014, this project morphed into a Restatement Project. At that point, the reporters should have abandoned their aspirational efforts and, instead, focused on existing law and majority rules as has been the case in most past Restatements. Instead of starting over, the authors and proponents of the Restatement of the Law of Liability Insurance adhered to the prior drafts but now referenced them as if they were reports of the majority view on the variety of aspects of liability insurance law. Today, the ALI and the authors and proponents recognize that many of the provisions in the “final” draft reflect the aspirations of the reporters rather than majority law but they persist with the project of a Restatement of Law. 1

About the Authors Current Procedural Status Many parts of the proposed Restatement have already been adopted. More recently, many diverse groups of insurers and attorneys have raised questions about the ALI authors’ wish-list as a Restatement from ALI. As a result, the ALI postponed a final vote on the Restatement of the Law of Liability Insurance that had been scheduled for the ALI annual meeting in May 2017, and instead delayed the final vote until the ALI meeting next spring. Restatement or Aspirations? We recognize that the ALI and its respective Restatements of the Law have been a major influence in the development of the law on a variety of issues. It is respectfully submitted, however, that the reliance by attorneys and the courts on these respective Restatements, and the legitimacy and reputation of the ALI itself, are based upon the Restatement’s discernment and presentation of the law as it stands. Recent changes in the policy of the Institute have allowed for the introduction of a reform-oriented approach

The views expressed are those of Mr. Eckler and Mr. Mifflin and not of their respective firms

or clients.

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to the law including recommendations for change rather than a recapitulation of the law as it exists. Unfortunately, these types of recommendations are prevalent in the proposed Restatement of the Law of Liability Insurance. It is a misnomer to call the proposed document a Restatement of the Law. The impact of the ALI’s departure from a focus on established law to the authors’ aspirations cannot be overstated.

R. Mark Mifflin of Giffin, Winning, Cohen and Bodewes, P.C. in Springfield has extensive experience in all levels of court work—from state administrative agency through the Illinois Supreme Court. Mr. Mifflin is also a registered lobbyist with the State of Illinois and has a proven track record of working with legislators and administrators at all levels of state government. Mr. Mifflin earned his B.A., with honors from Western Illinois University and his J.D., magna cum laude from Southern Illinois University School of Law. Mr. Mifflin is a former Legislative Staff Intern to the Illinois General Assembly, Clerk for the US District Court for the Central District of Illinois, Clerk for the Illinois Supreme Court and Assistant US Attorney for the Central District of Illinois. Mr. Mifflin served as the president of the Illinois Association of Defense Trial Counsel in 2016-2017 and was selected as the recipient of the 2017 Fred H. Sievert Award, presented by DRI in recognition of exceptional service as a defense bar leader. Donald Patrick Eckler is a partner at Pretzel & Stouffer, Chartered, handling a wide variety of civil disputes in state and federal courts across Illinois and Indiana. His practice has evolved from primarily representing insurers in coverage disputes to managing complex litigation in which he represents a wide range of professionals, businesses and tort defendants. In addition to representing doctors and lawyers, Mr. Eckler represents architects, engineers, appraisers, accountants, mortgage brokers, insurance brokers, surveyors and many other professionals in malpractice claims.

The ALI’s insistence upon proceeding with a wish-list, rather than a recapitulation of the majority law, calls into question the very purpose of the Restatement at its inception. Justice Scalia recognized the problem with this approach: [M]odern Restatements . . . are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” . . . Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be. . . . Restatement sections [with little support in caselaw] should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar. And it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law. Kansas v. Nebraska, 135 S. Ct. 1042 (2015) (Scalia, J., concurring in part and dissenting in part) (internal citations omitted). Surely, a Restatement in this context does not promote an orderly statement of the common law or a clarification and simplification of the law. The impact of this discussion is not theoretical. Despite the successful efforts to delay the final adoption of the Restatement, a United States District Court in the Southern District of Indiana has cited the “Discussion Draft” of the

Illinois, along with Texas, California, Florida, Pennsylvania, and New York, has the most developed insurance law in the country. This development allows for a stable, consistent application of the law that insurers, insureds, and their respective counsel can plan for and rely on. Restatement in a decision on May 26, 2017. Selective Ins. Co. of Am. v. Smiley Body Shop, Inc., No. 1:16-cv-00062JMS-MJD, 2017 WL 2306364, at *5 (S.D. Ind. May 26, 2017). It is unclear whether ALI will undertake a review of the proposed Restatement to determine whether it is appropriate. The ALI could rename the project as Principles or revise it to reflect current law if it is to remain a Restatement. However, if the authors’ past actions regarding criticisms of the project are any indication, the ALI may well move forward with the current draft as a Restatement even though much of it reflects the authors’ aspirations rather than a capitulation of current law. If this happens, attorneys must be ready to explain to courts the shortcomings of the Restatement as cited by Justice Scalia, and the ALI must be ready to weather the resulting storm.

rely on. Illinois has unique features to its body of insurance law, such as the estoppel doctrine articulated in Employers Ins. of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127 (1999), and the targeted tender rule, John Burns Construction Co. v. Indiana Insurance Company, 189 Ill. 2d 570 (2000). We may disagree about the wisdom or efficacy of these decisions, as many courts around the country have, but they are the law of Illinois. While the Restatement does not directly impact those particular decisions, other less controversial, but no less fundamental decisions, may. As will be seen, “reasonableness” is the mantra throughout this draft, leaving open wide swaths of the law to wild interpretation in an industry that benefits from certainty, not uncertainty.

Key Proposals are Contrary to Illinois Law

One of the most fundamental changes sought by the ALI is an adoption of the expectations test for policy interpretation. The proposed section is as follows:

Illinois, along with Texas, California, Florida, Pennsylvania, and New York, has the most developed insurance law in the country. This development allows for a stable, consistent application of the law that insurers, insureds, and their respective counsel can plan for and

Adoption of an Expectation test for policy interpretation—Proposed § 3



(1) The plain meaning of an insurance-policy term is the single mean— Continued on next page

Third Quarter 2017 | IDC QUARTERLY | 13

Feature Article | continued

ing, if any, to which the language of the term is reasonably susceptible when applied to the claim at issue, in the context of the insurance policy as a whole without reference to extrinsic evidence regarding the meaning of the term.

(2) An insurance-policy term is interpreted according to its plain meaning, if any, unless extrinsic evidence shows that a reasonable person in the policyholder’s position would give the term a different meaning. That different meaning must be more reasonable than the plain meaning in light of the extrinsic evidence, and it must be a meaning to which the language of the term is reasonably susceptible.

The first section is the law. It is the law of interpretation of any contract. The second section however, is anathema to the interpretation of contracts as it imposes the use of extrinsic evidence even where the policy language is not ambiguous. Under this draft, every policy provision would be subject to extrinsic evidence based upon what a policyholder “reasonably expected” and then what a court thinks is more reasonable. The current rule, that if a policy provision is susceptible to more than one reasonable interpretation, it is construed against the insurer, generally precludes the use of extrinsic evidence and creates a bright line rule for all to follow. The approach that the ALI has put forth as a “restatement” is directly contrary to current Illinois law which has rejected the expectations test. Continental Cas. Co. v. Howard Hoffman & Assocs., 2011 IL App (1st) 100957, ¶¶ 76-78. Further, the

14 | IDC QUARTERLY | Third Quarter 2017

proposed rule would allow other possible interpretations to be suggested, beyond reasonable interpretations, which is the opposite of current Illinois law. Erie Ins. Exch. v. Triana, 398 Ill. App. 3d 365, 368 (1st Dist. 2010). Adoption of “Substantial” Requirement for Rescission— Proposed § 8 In a direct assault of what is most often the subject of legislation, and which, if misunderstood by state legislatures, could lead to changes in statutes, the ALI has proposed requiring that in order for a rescission to be effective, the misrepresentation would have caused the policy to be issued on “substantially different terms.” The proposed section is: A misrepresentation by or on behalf of an insured during the application for, or renewal of, an insurance policy is material only if, in the absence of the misrepresentation, a reasonable insurer in this insurer’s position would not have issued the policy or would have issued the policy only after substantially different terms. Currently, Section 154 of the Illinois Insurance Code, like many such codes around the country, simply requires that there be a material difference in the premium to be charged. That is, any difference in the issuance of the policy, even a few dollars, is sufficient to support a rescission. It is fundamental to the concept of insurance that the risks within the pool be properly priced. Insurers and insureds alike are harmed when a proper

premium is not changed for a risk, or a risk is covered that would not have been had the insured not misrepresented the risk to be insured. Giving courts the opportunity to decide what is sufficiently substantial to warrant a rescission will lead to inconsistent judgments that will jeopardize insurers and lead to higher premiums for insureds. Further, the rule injects further uncertainty with what a “reasonable insurer in this insurer’s position.” Such a rule would lead to endless discovery regarding the underwriting principles for each insurer, their profit margins, and all manner of issues that are irrelevant to whether the insured failed to truthfully answer a question on an application. The current rule in Illinois is that a misrepresentation is material if a reasonable person would consider the information likely to increase the likelihood of the activity insured against and accordingly require the insurer to seek a higher premium, different terms of issuance, such as exclusion, or to decline to insure the risk at all. See 215 ILCS 5/154; Safeway Ins. Co. v. Duran, 74 Ill. App. 3d 846, 850-851 (1st Dist. 1979). Injecting more facts into the analysis of misrepresentation is a usurpation of current law, not a restatement of it. Adoption of Reasonableness Approach for Duty to Settle— Proposed § 24 Contrary to current Illinois law in Haddick v. Valor Ins. Co., 198 Ill. 2d 409 (2001), the Restatement seeks to impose a “reasonableness” standard for settlement decisions. The proposal is as follows:

Insurance law is a delicate balance between fairness and efficiency. The law must never lose sight of its fundamental purpose to require payment of valid claims while at the same time protecting the pool of insureds from insolvent insurers and higher premiums that will come if the correct balance is not struck.



(1) When an insurer has the authority to settle a legal action brought against the insured, or the authority to settle the action rests with the insured but the insurer’s prior consent is required for any settlement to be payable by the insurer, the insurer has the duty to the insured to make reasonable settlement decisions to protect the insured from a judgment in excess of the applicable policy limit.



(2) A reasonable settlement decision is one that would be made by a reasonable insurer who bears the sole financial responsibility for the full amount of the potential judgment.



(3) An insurer’s duty to make reasonable settlement decisions includes the duty to make its limits available to the insured for the settlement of a covered legal action that exceeds those limits if a reasonable insurer would do so in the circumstances.

This proposed rule essentially creates a quasi-strict liability standard for failure to settle. It is necessarily backward looking following an excess judgment. And like so many other parts

of the proposal, it imposes a reasonableness standard. In this circumstance, in Sections 2 and 3, the proposed rule attempts to define reasonableness but does so in a circular fashion by using reasonableness to define reasonableness. More importantly, it is contrary to Illinois law. In Haddick, the Illinois Supreme Court created a bad faith standard for determining if an insurer failed in its duty to settle. Simply being unreasonable is insufficient under Illinois law, actual bad faith is required. Haddick, 198 Ill. 2d at 306. The Restatement should not be recommending policy for courts and state legislatures, but rather should set forth what the policy is that has been created by the court and the state legislatures. Adoption of Damages for Failure to Make “Reasonable Settlement Decisions”—Proposed § 27 Ignoring the well-established and statutory schemes for determination of damages for failure to settle, the Restatement seeks to impose broad damages on insurers. The proposal is: An insurer that breaches the duty to make reasonable settlement decisions is subject to

liability for the full amount of damages assessed against the insured in the underlying legal action, without regard to the policy limits as well as any other foreseeable harm caused by the insurer’s breach of the duty. Like many states, the damages recoverable for bad faith are defined by statute. Section 155 of the Illinois Insurance Code provides for a penalty, attorneys’ fees, and costs. 215 ILCS 5/155. In addition, an insured in a given circumstance could seek damages beyond Section 155. Cramer v. Ins. Exch. Agency, 174 Ill. 2d 513, 530 (1996). What would constitute “other foreseeable harm” seems to go well beyond what is currently allowed under Illinois law. Conclusion Insurance law is a delicate balance between fairness and efficiency. The law must never lose sight of its fundamental purpose to require payment of valid claims while at the same time protecting the pool of insureds from insolvent insurers and higher premiums that will come if the correct balance is not struck. Relative certainty in the law of insurance is key to maintaining the insurance system that is essential to a well-functioning economy. The proposed Restatement threatens to upset that balance and harm the very insureds it is intending to help. But more fundamentally, as seen by the short recitation of diversions from Illinois law above, the Restatement is not a restatement of law at all, but the hopes of its authors.

Third Quarter 2017 | IDC QUARTERLY | 15

Medical Malpractice Update Edna L. McLain HeplerBroom LLC, Chicago

Context is the Key: Understanding When Incident Reports are Privileged Under the Long Term Care Peer Review and Quality Assessment and Assurance Protection Act When defending a hospital or nursing home, chances are you will grapple with the decision to produce or not produce incident reports. While several courts have analyzed whether hospital incident reports are protected from discovery under the Medical Studies Act, 735 ILCS 5/8-2101, a recent opinion from the Illinois Appellate Court Second District is the first to analyze whether the Long Term Care Peer Review and Quality Assessment and Assurance Protection Act (“Quality Assurance Act”), 745 ILCS 55/1, et. seq., affords similar privileges for nursing homes. Lindsey v. Butterfield Health Care II, Inc., 2017 IL App (2d) 160042. The court emphasized that the context and timing of the report’s generation is the key. In Lindsey, the Second District considered whether the trial court erred in ordering the defendant nursing home to disclose various documents, including an incident report and six written witness statements prepared during an internal investigation following a resident’s slip and fall, which the defendant asserted were privileged under the Medical Studies Act and the Quality Assurance Act. Lindsey, 2017 IL App (2d) 160042, ¶¶ 3-7. Because both statutes contained similar language and covered similar 16 | IDC QUARTERLY | Third Quarter 2017

subject matters, the court concluded that, under the in pari materia doctrine, both statutes should be interpreted harmoniously. Id. ¶ 11. The Medical Studies Act states, in pertinent part, that [a]ll information, interviews, reports, statements, memoranda, recommendations, letters of reference or other third party confidential assessments of a health care practitioner’s professional competence, or other data of…committees of licensed or accredited hospitals or their medical staffs…or their designees (but not the medical records pertaining to the patient), used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care or increasing organ and tissue donation, shall be privileged, strictly confidential… 735 ILCS 8/2101. It further states that such information “shall not be admissible as evidence, nor discoverable in any action of any kind in any court or

before any tribunal, board, agency or person.” 735 ILC 5/8-2102. Similarly, the Quality Assurance Act provides that the proceedings, communications, and records of a peer review or a quality assessment and assurance committee shall be privileged and confidential and “shall not be subject to discovery or introduction into evidence in any civil action.” 745 ILCS 55/4. Given the limited case law interpreting and analyzing the Quality Assurance Act, the Second District looked to a number of cases discussing the purpose and limits of the Medical Studies Act. Lindsey, 2017 IL App (2) 160042, ¶ 13. First, the court noted that the Medical Studies Act’s purpose is “to encourage candid and voluntary studies and programs used to improve hospital conditions and patient care or to reduce the rates of death and disease.” Id. ¶ 12. Without a statutory privilege over the proceedings and documents generated during the peer-review process, it is believed that physicians would be reluctant to have candid discussions about their colleagues. Id. However, the court noted that the statutory privilege had its limits even under the Medical Studies Act.

About the Authors Edna L. McLain is an associate attorney of HeplerBroom LLC. Ms. McLain graduated from the University of Illinois, ChampaignUrbana, in 1991, with a Bachelor of Arts degree in English, and she received her Juris Doctorate from the Saint Louis University School of Law in 2002. She is admitted to the bars of Illinois, Missouri and Wisconsin and the U.S. District Court of the Northern District of Illinois. Ms. McLain focuses her practice in the areas of medical malpractice, insurance defense and toxic torts. She is a member of the Illinois Association of Defense Trial Counsel.

The Second District considered the Illinois Supreme Court’s decision in Roach v. Springfield Clinic and the First District’s decision in Chicago Trust Co. v. Cook County Hosp., to determine whether the Medical Studies Act’s statutory privilege extended to documents generated and information gathered before the peer-review process began. Roach v. Springfield Clinic, 157 Ill. 2d 29, 41 (1993); Chicago Trust Co. v. Cook County Hosp., 298 Ill. App. 3d 396, 401 (1st Dist. 1998). In Roach, the defendant asserted that conversations between the hospital’s chief of anesthesiology and the nursing staff before the peer-review committee met were privileged. Roach, 157 Ill. 2d at 40. In Chicago Trust, the defendant asserted certain incident and situation reports prepared by hospital staff after a patient’s ventilator became disconnected were privileged under the Medical Studies Act because the reports were part of the review by the “Hospital Oversight Committee,” which was part of the quality assurance process. Chicago Trust Co., 298 Ill. App. 3d at 403. The appellate court acknowledged these decisions supported the proposition that documents generated specifically for a peer-review committee are privileged, but clarified that documents prepared, or information generated before a peerreview committee had been initiated would not be protected by the Medical Studies Act. Lindsey, 2017 IL App (2d) 160042, ¶ 12. Further, simply providing information and documents to the peer review committee after its investigation began would not extend the privilege to such previously prepared and generated information. Id. ¶ 16. To allow otherwise “would make everything confidential, except for the patient’s own medical

records.” Id. ¶ 17, citing, Chicago Trust, 298 Ill. App. 3d at 406. In this context, the Second District considered the nursing home’s arguments in Lindsey asserting privilege under both the Medical Studies Act and Quality Assurance Act for the incident report and six witness statements. The defendant’s nursing home administrator provided an affidavit asserting that the incident report and witness statements were prepared pursuant to the nursing home’s quality assurance protocols, which required the completion of “internal quality-assurance-investigation reports relating to incidents or accidents involving resident injuries.” Id. ¶¶ 4-7. The quality assurance committee and/or the fall committee used these reports “to determine ways that the risk of resident falls might be reduced.” Id. ¶ 4. Absent these quality assurance protocols, the defendant argued that these documents would not otherwise have been generated. Id. ¶ 17. The court dismissed these arguments and found that the documents were similar to the type at issue in Roach and Chicago Trust and that the documents were generated before any peer-review committee process had started. Id. Therefore, the court found no privilege existed under either the Medical Studies Act or the Quality Assurance Act and affirmed the trial court’s rulings and remanded for further proceedings. Id. ¶ 21. Practice Pointers The court’s decision in Lindsey turned on timing and context. Therefore, when evaluating whether to produce incident reports and witness statements in the context of nursing home

and hospital litigation, it is critical to know your organization’s policies and procedures concerning the creation and generation of incident reports, as well as statements following an accident involving a resident or patient. You need to know whether your organization-client has a written policy and procedure stating that an incident report following a resident or patient injury is required by a quality assurance or other peer review committee. If such a policy exists, you need to determine when the report and investigation was initiated and by whom. Best practice dictates that you interview the person(s) who prepared the report and other supporting documents to determine if the report and investigation conducted complied with the organization’s written policy and procedure. Likewise, a designated individual from the committee should prepare an affidavit in anticipation of interrogatories and document requests seeking production of incident reports and statements. The affidavit should state that the person who initiated the investigation is a member of the committee with authority to start the investigation, that the report and any witness statements were generated at the request of a quality committee, that the policy mandating a report was followed, and that the results were provided to the quality committee. In responding to discovery requests, a Illinois Supreme Court Rule 201(n) privilege log, asserting the privileges under the Medical Studies Act or Quality Assurance Act, should also be drafted in order to begin building a record in advance of any motion to compel.

Third Quarter 2017 | IDC QUARTERLY | 17

Legislative Update John Eggum Foran Glennon Palandech Ponzi & Rudloff P.C., Chicago

IDC Legislative Day and the Spring Session The Legislative Committee had a busy spring legislative season. Hundreds of bills made their way through the Illinois Senate and Illinois House of Representatives (and their committees and subcommittees), and the Legislative Committee was active in monitoring and discussing these bills with legislators and other stakeholders. Topics of interest to the IDC and its membership ran the gamut, including a law governing wrongful discharge, jury composition, arbitration, disclosures made by insurance companies regarding their reserves and their insureds’ claims, autonomous vehicles, and workers’ compensation reform.

efforts and commitment to these values. The bill proposed to preserve a right to object to personal jurisdiction over a person even after the filing of a motion for relief from judgment under Illinois Code of Civil Procedure §§ 2-1301, “Judgments—Default—Confession”, 2-1401 “Relief from judgments”, or 2-1401.1, “Relief from default judgment; military personnel in military service.” According to the bill’s sponsor, Representative André Thapedi (D, Chicago), the purpose of HB 188 was to protect pro se defendants who: (1) where never properly served with summons; (2) wish to preserve their jurisdictional challenge; (3) have default judgments

The IDC’s core values include the promotion of a fair and unbiased judiciary and the support of legislation that provides a fair, expeditious, and equitable resolution of disputes. Our members’ work on House Bill 188 is a great illustration of IDC’s legislative efforts and commitment to these values.

The IDC’s core values include the promotion of a fair and unbiased judiciary and the support of legislation that provides a fair, expeditious, and equitable resolution of disputes. Our members’ work on House Bill 188 was a great illustration of IDC’s legislative 18 | IDC QUARTERLY | Third Quarter 2017

entered against them; and (4) learn that the default judgment was entered against them 28 days or so after it was entered. Proper service of process is a cornerstone of a fair judicial system, and thus these objectives themselves were not concerning. As initially proposed,

however, the Legislative Committee had concerns about the drafting of the bill. The IDC had discussions with Representative Thapedi, the Illinois State Bar Association, creditors, and plaintiffs’ groups, and worked collaboratively to further the amended version of the bill, which passed out of the House this spring and articulated these goals under a clearer and more concise framework. Pat Eckler, IDC Board Member and Legislative Committee Chairman, took the lead representing the IDC in discussions of the bill. We appreciate his efforts on this result. We are also appreciative of Representative Thapedi’s willingness to engage in dialog with the numerous interested parties, to foster a thoughtful and inclusive process, and to propose the amended bill. Additionally, the IDC held its Legislative Day on April 5, 2017 in Springfield. Several of our board and committee members were privileged to have the opportunity to meet with Governor Rauner and a variety of legislators. We expressed our continuing support for

About the Author John Eggum is an attorney with Foran Glennon Palandech Ponzi & Rudloff P.C., where he concentrates his practice on insurance coverage matters and commercial litigation. He represents insurers, TPAs, brokers, and captive managers in professional liability disputes, and also litigates cyber/technology liability claims. Mr. Eggum’s law degree was obtained, with distinction, from The University of Iowa College of Law, and following law school, he served as the law clerk to the Hon. Bruce A. Markell in the United States Bankruptcy Court for the District of Nevada, in Las Vegas. Mr. Eggum serves as the Vice-Chair of the IDC Legislative Committee and the ViceChair for the IDC’s Young Lawyers Division.

Senate Bill (SB) 861, which would have amended provisions of the Illinois Code of Civil Procedure relating to civil actions on account of bodily injury or death or physical damage to property based on negligence (or product liability based on strict tort liability). The bill provided that the court shall not instruct the jury of the consequence of any findings of fault of any plaintiff or defendant under specified provisions of the Code, thereby providing a more level playing field by treating plaintiffs and defendants equally. The sponsor of SB 861 was Senate Republican Leader, Christine Radogno, who has an outstanding record of supporting and proposing common-sense, meaningful legislation that benefits all the people of Illinois. As of this writing, the General Assembly and the Governor’s office continue to struggle to find common ground. As such, the prospects for significant reform like SB 861 remain limited during this legislative year, but the situation in Springfield remains fluid and may change at any time. The IDC’s Legislative Day culminated with its annual Legislative Reception. We are pleased to report that the reception was well-attended by a number of members of the General Assembly and the Illinois Judiciary, including Illinois Supreme Court Chief Justice Lloyd Karmeier. We again thank all who attended for participating in the event, which is always an evening of great conversation for a diverse group, politically and ideologically. The IDC is proud to foster these dialogs, particularly in the current environment where political divides can seem to stifle open communication. In addition, IDC Board Member Adam Carter and I appeared before the Senate Judiciary Committee on April 5th to testify regarding Senate Bill 889, which pertained to jury qualifications.

[SB 861] provided that the court shall not instruct the jury of the consequence of any findings of fault of any plaintiff or defendant under specified provisions of the Code, thereby providing a more level playing field by treating plaintiffs and defendants equally.

The bill proposed amending 705 ILCS 305/2 to include the ambiguous term “economic status” as a base upon which persons may not be excluded from jury service. The bill, however, did not define the term. Although the phrase “economic status” is derived from federal law, the limited federal case law and the nature of the term risks creating uncertainty under the proposed statute. The statutory text provides no guidance for courts to determine when, and if, discrimination based on “economic status” may be occurring. The bill did ultimately pass, notwithstanding this vague provision. To alleviate any potential problems stemming from the “economic status” terminology, IDC expressed support for Governor Rauner issuing a signing statement that acknowledges that the application of the bill is limited to the selection of the jury pool, as opposed to voir dire (the process trial judges and attorneys use to question potential jurors to determine the suitability of individual jurors for a particular case). Senate Bill 889 has many laudable aspects, as it opposes and prevents discrimination against many protected classes, and this limited “economic status” issue should not be allowed to hamper the many positive aspects of the legislation. IDC members should also be aware that, because we have entered the second

half of the year, the Illinois Constitution limits the General Assembly’s ability to enact laws that have immediate effect. Article IV, Section 10 of the Illinois Constitution provides that: “A bill passed after May 31 shall not become effective prior to June 1 of the next calendar year unless the General Assembly by the vote of three-fifths of the members elected to each house provides for an earlier effective date.” Ill. Const. art. IV, § 10. Notably, although these provisions typically have a significant impact on taxes and budgets, that was not the case during this legislative session. In July, the General Assembly passed a budget package and tax increase, effective as of July 1, 2017, by overriding Governor Rauner’s veto of the budget presented to him for signature. The Legislative Committee will continue to monitor developments in the statehouse as we continue on toward the close of this first year of Illinois’ 100th General Assembly. Finally, as we move into the fall, we again invite any of our members that are interested in the IDC Legislative Committee and its activities to consider joining the committee for the 2017-18 IDC program year. Committee Chair Pat Eckler and Vice-Chairmen, Dave Herman and I, are always happy to discuss how our members can get involved and help support the IDC’s mission. Third Quarter 2017 | IDC QUARTERLY | 19

Appellate Practice Corner Scott L. Howie Pretzel & Stouffer, Chartered, Chicago

From the Jaws of Defeat: Petitions for Rehearing in the Appellate Court Even after losing in the appellate court, a litigant is not out of options— though often those options are not very promising. If the losing party is not ready to give up, it may file a petition for leave to appeal to the supreme court, asking that court to entertain further review. Ill. S. Ct. R. 315. It may also file a petition for rehearing in the appellate court, asking the same justices who rendered the adverse decision to change their minds. Ill. S. Ct. R. 367. Petitions for leave to appeal and petitions for rehearing differ in important ways—not just in the places they are filed and the immediate relief they seek, but in the nature of the arguments that should be made in each. While both challenge the appellate court’s decision in some way, the challenges they embody are rooted in different concerns. Of course, one need not choose between rehearing and leave to appeal; a party can file both in succession, seeking leave to appeal only after failing to obtain relief via rehearing. The real choice is whether to file a petition for rehearing at all. While rehearing is granted sparingly, in some circumstances it can be the most promising avenue of relief. Recognizing those circumstances can make it more than just an empty exercise. This edition of the Appellate Practice Corner discusses the use of petitions for rehearing in the appellate court, especially those procedural requirements that shed light on whether such a petition is appropriate in a particular case.

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Procedural Requirements for a Petition for Rehearing A petition for rehearing may be filed within 21 days after the reviewing court issues a decision—or within a shorter or longer period provided by the court on a party’s motion, though the rule cautions that extensions of time are not favored. Ill. S. Ct. R. 367(a). Such a petition may be up to 27 pages or 8,000 words long, unless the court or one of its justices allows more. Id. But there is reason to be reluctant even to approach these limits, let alone to consider exceeding them. In describing what a petition for rehearing must contain, the rule emphasizes economy: “The petition shall state briefly the points claimed to have been overlooked or misapprehended by the court, with proper reference to the particular portion of the record and brief relied upon, and with authorities and argument, concisely stated in support of the points.” Ill. S. Ct. R. 367(b) (emphasis added). At least initially, the opposing party—typically the party who prevailed in the appellate court’s decision, though depending on the circumstances there might not be a single clear winner—is spared having to decide whether to dignify a petition for rehearing with an answer. “No answer to a petition for rehearing will be received unless requested by the court or unless the petition is granted.” Ill. S. Ct. R. 367(d). Despite this prohibition, the opposing party need not worry that the appellate

court might change its ruling on the basis of the petition alone; “[n]o substantive change in the relief granted or denied by the reviewing court may be made on denial of rehearing unless an answer has been requested.” Id. When an answer is permitted, the rule supplies deadlines and content limits for both the answer and a reply in support of rehearing. The opposing party has 21 days to file an answer, which is limited (like the petition itself) to 27 pages or 8,000 words; the petitioner has 14 days from the due date of the answer in which to file a reply, limited to 10 pages or 3,500 words. Id. Rule 341, which otherwise concerns only the briefs filed prior to the appellate court’s decision, sets forth the colors to be used for the covers of the petition and subsequent filings: light green for the petition, tan for the answer, and orange for the reply. Ill. S. Ct. R. 341(d). Rule 367 also provides that the court may order oral argument on its own motion—perhaps suggesting that the parties should not request it, as they may when filing briefs. See Ill. S. Ct. R. 367(d); Ill. S. Ct. R. 352(a).

About the Author Scott L. Howie is a partner at Pretzel & Stouffer, Chartered, in Chicago, specializing in post trial and appellate practice in the state and federal courts. He received his undergraduate degree from Northwestern University in 1989 and his law degree from ChicagoKent College of Law in 1994. Mr. Howie is a member and past director of the Illinois Appellate Lawyers Association, where he co-chairs the Moot Court Committee.

What Makes a Case Suitable for a Petition for Rehearing? The decision whether to file a petition for rehearing prior to, or instead of, a petition for leave to appeal requires examining the nature of the reasons for challenging the appellate court’s decision. While some arguments may be equally suited to both rehearing and leave to appeal, some are better suited to one device or the other. Befitting the stature of the Illinois Supreme Court and the discretionary nature of leave to appeal, a petition for leave to appeal generally should be based on issues of some significance to the judicial system, not just to the parties in a particular case. Rule 315(a) illustrates “the character of reasons” the supreme court considers in determining whether to grant leave to appeal, including “the general importance of the question presented; the existence of a conflict between the decision sought to be reviewed and a decision of the Supreme Court, or of another division of the Appellate Court; [and] the need for the exercise of the Supreme Court’s supervisory authority[.]” Ill. S. Ct. R. 315(a). While this is not an exhaustive list, it nonetheless indicates that the supreme court generally grants leave to appeal only when a party raises issues that have broad precedential effect. See, Id. By contrast, a factual mistake about the case before the appellate court, or a mistake about another case cited as precedent, are of a different character. Such mistakes may be very important to the appeal, and especially to a party who blames a mistaken decision on shortcomings in the appellate court’s reasoning, but they may have little discernible impact beyond that appeal. This may be especially true when the losing party

disagrees with the appellate court’s use of precedent—for example, its conclusion that another case is distinguishable on its facts—and the court has issued its decision under Rule 23, giving it no legal value as precedent and thus creating no legal conflict. See Ill. S. Ct. R. 23(b), (c), (e). Mistakes with such limited impact, attributable to “points claimed to have been overlooked or misapprehended by the [appellate] court,” make suitable grounds for a petition for rehearing but do not necessarily raise concerns that call for review in the supreme court. See Ill. S. Ct. R. 367(b). Effect on Jurisdiction in the Supreme Court A petition for rehearing is not a prerequisite for leave to appeal in the supreme court, or even for preserving particular issues or arguments, but it can have important jurisdictional implications for further review. The filing of a petition for rehearing effectively stays the 35-day period in which to file a petition for leave to appeal to the supreme court, resetting that period to the full 35 days after the appellate court rules on the petition. Ill. S. Ct. R. 315(b). (Though there is case law stating that a party has only 21 days to file a petition for leave to appeal, that law reflected an earlier version of Rule 315(b). See A.J. Maggio Co. v. Willis, 197 Ill. 2d 397, 403 (2001)). Thus, the filing of a petition for rehearing automatically postpones the deadline for a petition for leave to appeal, though that alone should not be a reason for filing one. At the same time, however, the incautious filing of a petition for rehearing in the appellate court can result in jurisdictional defects that preclude review in the supreme court. Once the

appellate court has entered judgment on rehearing, no further petitions for rehearing may be filed in that court by any party. Ill. S. Ct. R. 367(e); A.J. Maggio, 197 Ill. 2d at 401. The Committee Comments explain the reason for this limitation: “When that court has twice considered a case, once initially and a second time on rehearing, there would seem to be no need for further consideration, especially when there is a higher court from which relief can be sought.” Ill. S. Ct. R. 367 (Committee Comments). A subsequent petition for rehearing, filed after the appellate court has ruled on one previously filed, is not only improper; it also has no effect on the deadline for a petition for leave to appeal, which is due 35 days after the ruling on the first petition for rehearing. A.J. Maggio, 197 Ill. 2d at 403. The plaintiff in A.J. Maggio initially persuaded the appellate court to reverse the dismissal of its claim, only to have the dismissal reinstated on the defendant’s petition for rehearing. Id. at 399. Rather than seeking leave to appeal in the supreme court, it filed its own petition for rehearing of the appellate court’s second decision. Id. at 399–400. When that petition was denied, the plaintiff filed a petition for leave to appeal to the supreme court—which granted leave to appeal, but later dismissed the appeal for lack of jurisdiction. Id. at 400, 404. The plaintiff’s petition for rehearing was an improper second petition, it held, and thus did not postpone the deadline for the petition for leave to appeal, which was untimely and therefore inadequate to confer jurisdiction on the supreme court. Id. at 403–04.

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Putting Procedural Requirements to Tactical Advantage A petition for rehearing is akin to a motion to reconsider; it challenges the appellate court’s decision and seeks to persuade the same justices who issued that decision—or, at least, enough of them to make a majority—that the decision was incorrect. As any attorney who has filed a motion to reconsider can attest, it is no small feat to persuade a judge to change his or her mind after rendering a decision. It is at least as difficult on appeal, since the court has not just stated its ruling publicly but given a written rationale for that ruling. Rule 367 obliquely acknowledges this difficulty by restricting briefing on petitions for rehearing. While such petitions are not openly discouraged, it is hardly encouraging that the other side is not even allowed to answer a petition for rehearing unless the court asks it to do so. See Ill. S. Ct. R. 367(d). Hold your horses, the rule seems to tell the respondent; if the court thinks you need to trouble yourself, it will let you know. Since the rule implicitly sets the bar for rehearing so high—and since the appellate court has already gone on record with its initial decision, nearly always with a detailed written explanation for that decision—it is especially important to explain what is wrong with that explanation. This is rarely achieved by offering a rephrased version of the arguments previously made. Even if Rule 367 did not expressly forbid “[r]eargument of the case,” it is hard to imagine why reargument would be successful if the initial argument was not. This is true even if one of the justices in the appellate court dissented from the decision. It can be tempting to think that a dissent suggests that there is a greater 22 | IDC QUARTERLY | Third Quarter 2017

chance of rehearing; after all, one might reason, the party filing the petition need only persuade one of the two justices in the majority to change his or her mind, rather than two out of a unanimous three. But if the dissent is based on that justice’s agreement with the losing party’s argument, any such optimism is generally misplaced. Presumably the justices in the majority considered the views of the dissenting justice before issuing the decision, and if neither of them was persuaded when their colleague expressed those views, it is unlikely that either will be persuaded when the losing party repeats them. Still, if the grounds for rehearing are limited to some aspect of the majority opinion that is both significant to the decision and objectively mistaken, rather than a mere recitation of the same arguments that were unsuccessful the first time, they may be enough to change the mind of at least one justice in the majority. In any event, there is little to be gained from a petition for rehearing that merely restates the same arguments that were set forth in the original brief or briefs, regardless of whether one of the justices was convinced by them in the first instance. But while Rule 367 squarely forbids the mere repetition of arguments made in the original briefing, Rule 341 prohibits arguments that were not made there: “Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.” Ill. S. Ct. R. 341(h)(7) (emphasis added). These restrictions—don’t just reargue the same points as before, but don’t raise new ones, either—effectively force that party to identify meaningful errors in the appellate court’s analysis, underscoring the importance of identifying specific “points overlooked or misapprehended” by the appellate court. See Ill. S. Ct. R. 367(b).

The appellate court’s opinion may not always make this an easy task, and it can be harder still if there is no opinion at all. A petition for rehearing may be suitable for any disposition by the appellate court, not just a decision on the merits. The dismissal of an appeal, for instance, may be the subject of such a petition. Woodson v. Chicago Bd. of Educ., 154 Ill. 2d 391, 397 (1993); see also Ill. S. Ct. R.367 (Committee Comments). Unless the dismissal is in a written opinion, the court might not explain its reasoning, possibly making it difficult to identify “points overlooked or misapprehended.” See Ill. S. Ct. R. 367(b). In such instances, however, the dismissal ordinarily will be on an opponent’s motion, and therefore can be presumed to be based on the reasons offered in the motion. Conclusion While the long odds against rehearing are a factor to consider in deciding whether to exercise that option, they are not necessarily a reason to reject that option out of hand. Some issues are casespecific, unlikely to affect the broader systemic concerns that call for leave to appeal, and have little or no chance of being accepted for review in the supreme court—and yet can be significant enough to make the appellate court recognize an error in its own reasoning. A brief and concise explanation of an important point overlooked or misapprehended by the court satisfies the requirements of Rule 367, and in the rare case, may be enough to change the court’s mind.

About the Authors

Health Law Roger R. Clayton, Mark D. Hansen and J. Matthew Thompson Heyl, Royster, Voelker & Allen, P.C., Peoria

Isn’t Every Party Entitled to be Represented by its Own Attorney? Take Note of Gapinski v. Gujrati The Illinois Appellate Court, Third District, recently released its opinion in Gapinski v. Gujrati, 2017 IL App (3d) 150502, which addressed several important issues on appeal. However, of particular note is the court’s determination that the trial court did not abuse its discretion in preventing lawyers representing a party from delivering opening and closing statements and questioning witnesses. This is a troubling finding as it appears to impinge on the right of a party to choose and be represented at trial by its own attorney. The basis of the court’s finding, that the interests of an agent and principal in a vicarious liability claim are identical, often may not be true at all. Background Gapinski involved allegations of a misdiagnosis of metastatic cancer against a pathologist and the pathologist’s employer. The facts set forth in the opinion are long and complicated due to the various issues considered on appeal, but only those relevant to the legal representation are necessary to consider for purposes of this article. The plaintiff filed suit in February 2011 against the pathologist and her employer. Gapinski, 2017 IL App (3d) 150502, ¶ 6. From February 2011 until February 2014, the pathologist and her employer were jointly represented by the same law firm. Id. ¶ 7. In February 2014, approximately four months prior

to the start of trial, the pathologist sought leave of court to substitute a new law firm to represent her. Id. The reason the pathologist sought to substitute attorneys is not stated in the opinion, and it is not clear that it was made part of the record. The plaintiff objected to the motion to substitute “based on the timing . . . which was filed close to the scheduled start of trial,” and raised the “potential adverse consequences substitution of counsel would have on the trial date.” Id. ¶¶ 7, 38. However, there is no indication that the substituting law firm sought to delay the trial or anything else to support the plaintiff’s objection. See Ill. Sup. Ct. R. 13(c)(3) (motion to withdraw “may be denied by the court if the granting of it would delay the trial of the case, or would otherwise be inequitable”). Ultimately, the plaintiff proposed that the substitution be allowed, but that the trial court require “the defense attorneys to take turns or alternate questioning witnesses and allow[] only one of them at a time to represent the defendants.” Gapinski, 2017 IL App (3d) 150502, ¶ 7. The trial court agreed with the plaintiff and allowed the substitution of counsel, but ordered that counsel for the pathologist and her employer were “allowed to participate only one at a time during the trial.” Id. ¶¶ 7, 36, 39. In other words, either the pathologist’s attorney or the employer’s attorney could give the opening statement, closing argument,

Roger R. Clayton is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C., where he chairs the firm’s healthcare practice group. He also regularly defends physicians and hospitals in medical malpractice litigation. Mr. Clayton is a frequent national speaker on healthcare issues, medical malpractice, and risk prevention. He received his undergraduate degree from Bradley University and law degree from Southern Illinois University in 1978. He is a member of the Illinois Association of Defense Trial Counsel (IDC), the Illinois State Bar Association, past president of the Abraham Lincoln Inn of Court, president and board member of the Illinois Association of Healthcare Attorneys, and past president and board member of the Illinois Society of Healthcare Risk Management. He co-authored the Chapter on Trials in the IICLE Medical Malpractice Handbook. Mark D. Hansen is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He has been involved in the defense of cases involving catastrophic injury, including the defense of complex cases in the areas of medical malpractice, products liability, and professional liability. Mark has defended doctors, nurses, hospitals, clinics, dentists, and nursing homes in healthcare malpractice cases. He received his undergraduate degree from Northern Illinois University and law degree from University of Illinois College of Law. Mark is a member of the Illinois Association of Defense Trial Counsel and is a former co-chair of the Young Lawyers Committee, former ex officio member of the Board of Directors, and has served as chair for various seminars hosted by the IDC. He is also a member of the Illinois Society of Healthcare Risk Management, the Abraham Lincoln American Inn of Court, and the Defense Research Institute. J. Matthew Thompson is an associate in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He practices primarily in the area of general tort defense. He received his B.S. in Accounting from Culver-Stockton College in 2005 and his J.D. cum laude from Southern Illinois University School of Law in 2008.

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and question each witness, but not both. At trial, the jury found in favor of the plaintiff and awarded her nearly $2 million in damages. The defendants’ appeal raised this issue, among others. No Reversible Error in Prohibiting a Party’s Attorney From Giving an Opening, Closing, or CrossExamining Witnesses On appeal, the court framed the issue as “whether the trial court erred when it barred [the pathologist] and [her employer] from dual representation.” Id. ¶ 35. The defendants argued that by barring the attorneys for each defendant from actively participating in the trial, the trial court limited counsel for each defendant to representing his client only half the time. Further, each time a defense attorney was participating in the trial, he was expected to represent the interests of the other defendant, a non-client. Id. ¶ 36. In a cursory fashion, the court found no abuse of discretion in the trial court’s limitation of representation. Id. ¶¶ 38-39. First, the court pointed out that the case had been pending for three years before the motion for substitution was filed, and the trial was scheduled to start in just four months. Based upon this, the court found that the trial court “arguably” could have denied the motion to substitute outright. Id. ¶ 38. The court also referenced the plaintiff’s concerns of potential adverse consequences on the trial date. Gapinski, 2017 IL App (3d) 150502, ¶ 38. Yet, there is no indication that anyone, including the substituting law firm, sought to continue the trial date. The court then moved on to the trial court’s finding that allowing both defense attorneys to participate at trial would be redundant and unnecessary. Id. ¶ 39. Because the plaintiff’s claim 24 | IDC QUARTERLY | Third Quarter 2017

against the employer was based upon vicarious liability, the court found the defendants had a “commonality of interests.” Id. It also pointed out that each defendant was allowed to present its own expert witnesses. Based upon this, the court found that the defendants were not prejudiced by the trial court limiting their representation by counsel at trial. Id. Justice Carter wrote a special concurrence, which addressed this issue in much more depth. Id. ¶ 61 (Carter, J., specially concurring). The theme of his concurrence was that the “parties’ litigation interests [were] nominally the same” or even that the parties had “identical interests.” Id. ¶¶ 62, 64. He found that while the due process clauses of the United States and Illinois Constitutions requires allowing litigants “meaningful participation” at trial, it does not mean parties with common interests have a right to overlap questions and arguments. Gapinski, 2017 IL App (3d), ¶ 63. He then turned to Illinois Rule of Evidence 611, which provides for the mode and order of questioning witnesses and presenting evidence, and Illinois Rule of Evidence 403, which allows for the exclusion of cumulative evidence. Based upon these rules, Justice Carter found no rule prohibiting judges from splitting the examination of witnesses and presentation of arguments between attorneys representing parties with identical interests. Id. ¶ 64. Finally, Justice Carter reached back to English common law from the early 1800s, which apparently involved twenty defendants having to choose one defense attorney to represent them because their interests were “precisely the same.” Id. ¶ 65 (citing Chippendale v. Masson, 171 Eng. Rep. 56 (1815)). Justice Carter pointed out the trial court’s concern with protecting witnesses

from unduly confusing and excessive questioning and repetitive arguments. Based upon a trial court’s power to control trial procedure, Justice Carter found that a trial judge may “split examination of witnesses and divide the opening statements and closing arguments between counsel for separately represented defendants with identical interests.” Id. ¶ 68. The Timing of the Substitution Should Have Been Irrelevant As noted above, in Gapinski, the court focused on the timing of the motion for substitution three years into the litigation and about four months before trial as a justification for the trial court’s decision because “[a]rguably, the trial court would have been within its discretion to deny [the pathologist’s] motion to substitute outright.” Id. ¶ 38. However, this focus seems to be misplaced because the opinion does not detail any prejudice the plaintiff would have suffered by the substitution. While the court discussed the plaintiff’s concern about “potential adverse consequences substitution of counsel would have on the trial date,” there is no indication that the substituting attorney ever sought to continue the trial date. Id. In fact, after the substitution was allowed, the trial apparently proceeded as scheduled. If the substitution was going to impact the trial date seemingly for counsel to “catch up,” why would it take any shorter period of time based upon the trial court’s decision to allow the substitution but limit representation? Wouldn’t counsel still need to be equally prepared to participate, either by questioning the witnesses himself or consulting with the co-defendant’s attorney about topics he believed to be important?

Gapinski seemingly ignores the direction provided by the Illinois Supreme Court in Sullivan v. Eichmann, 213 Ill. 2d 82 (2004). The Sullivan court recognized the “established right of a party to discharge his attorney at any time with or without cause, and to substitute other counsel, for a client is entitled to be represented by an attorney in whose ability and fidelity he has confidence.” Sullivan, 213 Ill. 2d at 90 (quoting Savich v. Savich, 12 Ill. 2d 454, 457-78 (1957) (internal quotation marks omitted)). The only limitation on the right to substitute counsel is where substitution would “unduly prejudice” the opposing party or “interfere with the administration of justice.” Sullivan, 213 Ill. 2d at 91 (quoting Filko v. Filko, 127 Ill. App. 2d 10, 17 (1st Dist. 1970) (internal quotation marks omitted)). In Sullivan, the supreme court found that the trial court abused its discretion in denying substitution of counsel, even though doing so required delay of hearing on the defendant’s motion for summary judgment in a case where the plaintiff had repeatedly missed discovery deadlines, including a deadline for the disclosure of an expert witness. The Sullivan court found it was abuse of discretion to deny the plaintiff representation by an attorney in whose “ability and fidelity” she had confidence. Sullivan, 213 Ill. 2d at 93. Based on Sullivan, the substitution of counsel in Gapinski should have been allowed. As set forth above, the Gapinski court detailed no prejudice to the plaintiff or delay in the administration of justice. Therefore, the pathologist had the “right . . . to discharge [her] attorney at any time with or without cause, and to substitute other counsel . . . in whose ability and fidelity [s]he ha[d] confidence.” Sullivan, 213 Ill. 2d at 90. The Gapinski court did not detail any reason or motivation

The appellate courts have long recognized that when a plaintiff chooses to sue multiple defendants, each defendant is entitled to present an expert witness in her own defense. This is true even where the multiple experts are cumulative and also support the defense of co-defendant physicians. behind the pathologist’s motion to substitute. Perhaps she had lost confidence in her previous attorney, or at least, had more confidence in the substituting attorney. Regardless of her motivation, the pathologist should not have been denied the right to substitute counsel.

plaintiff saw a benefit to suing both the pathologist and her employer and should have been prepared for whatever drawbacks also accompanied that decision.

All Defendants Were Entitled to be Represented by Counsel

The court’s decision in Gapinski, along with Justice Carter’s concurrence, were based in large part on the idea that the pathologist and her employer had identical interests because this was a vicarious liability claim, and therefore, neither was prejudiced by being forced to be represented by the other’s attorney. Gapinski, 2017 IL App (3d) 150502, ¶¶ 39, 62, 68. There was no discussion, however, that sometimes a physician and her employer may have very different interests at trial, especially in a medical malpractice case. A physician has distinct interests when sued for medical malpractice. An adverse result can harm the physician’s reputation. It also results in reporting to the Illinois Department of Financial and Professional Regulation and the National Practitioner Databank, which can adversely impact a physician’s licensure or result in other penalties. While a physician’s employer typically is interested in the defense of the

The appellate courts have long recognized that when a plaintiff chooses to sue multiple defendants, each defendant is entitled to present an expert witness in her own defense. This is true even where the multiple experts are cumulative and also support the defense of co-defendant physicians. Taylor v. County of Cook, 2011 IL App (1st) 093085, ¶ 36; Tsoukas v. Lapid, 315 Ill. App. 3d 372, 383 (1st Dist. 2000). The same principle should have applied in the situation presented in Gapinski. The plaintiff chose to sue both the pathologist and her employer, so each was entitled to present its own defense through its own attorney. The plaintiff could have chosen to sue just the pathologist or just her employer, but did not. Whatever prejudice would have resulted to the plaintiff in having each defendant present its own defense was brought on by the plaintiff herself. Presumably, the

The Interests of an Agent and Principal are Not Always Identical

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physician that is sued, the employer also must consider the interests of the organization itself. For instance, the employer may wish to settle a case or focus heavily on limiting damages at trial if the case presents financial or reputational risks to the organization. However, the Gapinski court did not consider these issues, finding instead that the pathologist and her employer had identical interests. Based upon this incorrect assumption, the court took away the pathologist’s right to choose her own attorney. Conclusion Unquestionably, Gapinski is a concerning decision for defense counsel and their clients. Unless it is reconsidered and overturned, certain strategic decisions should be considered. If the defense of a physician and employer will be split, counsel should recommend that this be done as early in the litigation as possible. This would eliminate any concerns with a substitution of counsel close to trial. Furthermore, the Gapinski court made clear that the issue is left to the trial court and will only be reviewed for abuse of discretion. Gapinski, 2017 IL App (3d) 150502, ¶ 37. Therefore, if counsel can persuade the trial court to allow each attorney to represent his or her own client fully, it will not amount to reversible error.

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Feature Article Donald Patrick Eckler and Mary H. Cronin Pretzel & Stouffer, Chartered, Chicago

Seventh Circuit Expands Title VII of the Civil Rights Act of 1964 to Include Discrimination on the Basis of Sexual Orientation in Hively v. Ivy Tech Community College of Indiana In a landmark en banc decision reversing the decision of the district court and a panel of the Seventh Circuit Court of Appeals, the Seventh Circuit held that Title VII of the Civil Rights Act of 1964, which prohibits “sex” discrimination against an employee, includes discrimination on the basis of one’s sexual orientation. Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017). The Seventh Circuit is the first United States Circuit Court to expand the protections afforded under the Civil Rights Act to include individuals who are subjected to discrimination on the basis of their sexual orientation. Facts of the Hively case Kimberly Hively (Hively) began teaching as a part-time adjunct professor at Ivy Tech Community College in South Bend, Indiana in 2000. Hively, 853 F.3d at 341. Hively applied at least six times in the span of five years for full-time positions at Ivy Tech without ever successfully being accepted by the school. Id. In July 2014, Ivy Tech did not renew Hively’s employment contract. Id. Hively attributed her unsuccessful attempts for full-time professor and the school’s failure to renew her part-time contract to the fact that she is openly lesbian. Id.

Procedural History On December 13, 2013, Hively filed a pro se charge with the Equal

About the Authors Donald Patrick Eckler is a partner at Pretzel & Stouffer, Chartered, handling a wide variety of civil disputes in state and federal courts across Illinois and Indiana. His practice has evolved from primarily representing insurers in coverage disputes to managing complex litigation in which he represents a wide range of professionals, businesses and tort defendants. In addition to representing doctors and lawyers, Mr. Eckler represents architects, engineers, appraisers, accountants, mortgage brokers, insurance brokers, surveyors and many other professionals in malpractice claims. Mary H. Cronin is a partner with Pretzel & Stouffer, Chartered and has tried cases as a first chair and second chair attorney in state and federal courts. Ms. Cronin’s experience includes product liability litigation, national-scope mass tort and multidistrict litigation, employment discrimination, professional liability litigation, and arbitrations pursuant to the American Arbitration Association’s rules. Ms. Cronin was part of a team that recently obtained a $30,000,000 arbitration award for contribution and indemnity against a manufacturer of an aerosol grout sealer that injured 200 plaintiffs throughout the country.

The Seventh Circuit is the first United States Circuit Court to expand the protections afforded under the Civil Rights Act to include individuals who are subjected to discrimination on the basis of their sexual orientation.

Employment Opportunity Commission (EEOC) stating her belief that the school was discriminating against her because of her sexual orientation. Id. The EEOC issued Hively a right-to-sue letter and she filed this action with the United States District Court for the Northern District of Indiana. Id. In response, Ivy Tech filed a motion to dismiss for failure to state a claim upon which relief may be granted, arguing that sexual orientation is not a protected class under Title VII. The district court granted Ivy Tech’s motion to dismiss based upon a line of cases exemplified in Hammer v. St. Vincent Hosp. and Health Care Ctr., Inc., 224 F.3d 701 (7th Cir. 2000). Hively, 853 F.3d at 341. Hively filed an appeal and the Seventh Circuit affirmed Ivy Tech’s dismissal. Id., citing Hively v. Ivy Tech Cmty. Coll. of Ind., 830 F.3d 698 (7th Cir. 2016). In its holding, the Seventh Circuit distinguished discrimination on the basis of sexual orientation from sex discrimination based upon dicta in Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984). Hively, 853 F.3d at 341. In Ulane, the court stated that the prohibition of sex discrimination “‘implies that it is unlawful to discriminate against women because they are women and men because they are men.’” Id., quoting Ulane, 742 F.2d at 1085. Relying on this supposition, the court believed that

Congress did not have anything more in mind than the traditional notions of “sex” when it voted to outlaw sex discrimination. Hively, 853 F.3d at 341, citing Doe v. City of Belleville, Ill., 119 F.3d 563, 572 (7th Cir. 1997), cert. granted, judgment vacated sub nom. City of Belleville v. Doe, 523 U.S. 1001 (1998), abrogated by Oncale v. Sundowner Offshore Servs. Ins., 523 U.S. 75 (1998). Almost all of the other United States Circuit Courts as well as subsequent Seventh Circuit cases followed this precedent. Hively, 853 F.3d at 341. In March 2017, the Second Circuit noted in a concurring opinion that they thought that their court should consider revisiting the precedent that sexual orientation discrimination claims are not cognizable under Title VII in an appropriate case. Id. at 342, citing Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017) (per curiam). While the United States Supreme Court has not interpreted the scope of Title VII’s ban on sex discrimination, the Supreme Court has issued several opinions relevant to this issue. Hively, 853 F.3d at 342. One key Supreme Court decision is Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which holds that “the practice of gender stereotyping falls within Title VII’s prohibition against sex discrimination.” Hively, 853 F.3d at 342. Another key Supreme Court decision, Oncale v. Sundowner Offshore Servs.,

Inc., 523 U.S. 75 (1998), expanded this concept in holding that “it makes no difference if the sex of the harasser is (or is not) the same as the sex of the victim.” Hively, 853 F.3d at 342. In its panel decision in Hively, the Seventh Circuit acknowledged the difficulty in extricating gender nonconformity claims from sexual orientation claims. Hively, 830 F.3d at 709. The Court noted that bizarre results have occurred from the current legal regime particularly since the Supreme Court held that the United States Constitution protects the right of same-sex couples to marry. Id. at 714. The Seventh Circuit has described the quandary as a “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” Id. The panel also noted “[t]he sharp tension between a rule that fails to recognize that discrimination on the basis of the sex with whom a person associates is a form of sex discrimination, and the rule, recognized since Loving v. Virginia, 388 U.S. 1 (1967), that discrimination on the basis of the race with whom a person associates is a form of racial discrimination.” Hively, 853 F.3d at 342. Despite these principles, the panel recognized that the court’s precedent bound it until there was new legislation or a new Supreme Court opinion. Id. at 342. A majority of the judges in regular active service voted to rehear Hively en banc based upon the importance of the issue and in recognition of the power of the court to overrule earlier decisions in order to bring the law into conformity with the Supreme Court’s teachings. Id. at 343. In framing the issue before the court, Judge Wood stated,

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Feature Article | continued

The question before us is not whether this court can, or should ‘amend’ Title VII to add a new protected category to the familiar list of ‘race, color, religion, sex, or national origin.’ 42 U.S.C. § 2000e-2(a). Obviously that lies beyond our power. We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. Id. The court found this issue within its purview as a pure question of statutory interpretation. The Law Before Hively “Title VII is not a panacea for bad behavior in the workplace.” Coffman v. Indianapolis Fire Dept., 578 F.3d 559, 564 (7th Cir. 2009). It only forbids discrimination “because of [the employee’s] race, color, religion, sex, or national origin.” Id; see also, 42 U.S.C. § 2000e-2(a)(1). In a claim alleging sex discrimination, the defendant is entitled to entry of summary judgment in its favor where the plaintiff is unable to link her treatment—through direct or circumstantial evidence – with the fact she is female, which is a protected class under the statute. Coffman, 578 F.3d at 564. Congress intended the term “sex” in Title VII to mean “biological male or biological female,” and not one’s sexuality or sexual orientation. Spearman v. Ford Motor Company, 231 F.3d 1080, 1084 (7th Cir. 2000). As a result, in the context of Title VII, the Seventh Circuit has consistently held that discrimination 28 | IDC QUARTERLY | Third Quarter 2017

based upon one’s sexual preference or orientation is not actionable. Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1062 (7th Cir. 2003); Howell v. North Central College, 320 F. Supp. 2d 717, 722 (N.D. Ill. 2004). In Spearman, a homosexual plaintiff who never disclosed his sexual orientation to his employer claimed that sexually explicit insults he received from his co-workers constituted actionable gender stereotyping in violation of Title VII. Spearman, 231 F.3d at 1085. Specifically, plaintiff alleged that a co-worker called him a “little bitch” and stated he hated plaintiff’s “gay ass.” Id. at 1082. He further claimed that workplace graffiti linked him with AIDS and labeled him as gay; and that he was assigned duties he believed should be reserved for women. Id. at 1085. Plaintiff also contended that he was discriminated against because his co-workers perceived him to be too feminine to fit the masculine image at the auto plant where he worked. Id. The district court granted summary judgment to plaintiff’s employer, and the Seventh Circuit affirmed. Id. at 1087. The court held that plaintiff’s evidence had not established discrimination based upon plaintiff’s sex or that plaintiff was treated in the manner he was because he did not fit male gender stereotypes. Id. at 1085. To the contrary, the Seventh Circuit concluded that the evidence “clearly demonstrate[d] that [plaintiff’s] problems resulted from his altercations with co-workers over work issues and because of his apparent homosexuality,” which are not actionable. Spearman, 231 F.3d at 1085. The court explained that the evidence had shown “[plaintiff’s] co-workers directed stereotypical statements at him to express their hostility to his perceived homosexuality, and not to harass him because he is a man.” Id.

In Hamm, a heterosexual male plaintiff alleged that one of his co-workers “constantly” referred to him and another co-worker as “faggots,” and sometimes referred to him as “girl scout.” Hamm, 332 F.3d at 1063-64. He argued that his “coworkers did not believe he fit the sexual stereotype of a man, and that their sexual stereotyping [was] evidence of discrimination ‘because of’ sex.” Id. at 1062. However, the plaintiff admitted that he perceived his coworkers’ conduct to relate to their mistaken belief about his homosexuality. Id. at 1063. The district court granted summary judgment for the defendant, and the Seventh Circuit affirmed. Id. at 1065. The Seventh Circuit held that plaintiff’s characterization of the harassment as being based upon perceptions of his sexual orientation (rather than stereotypes based upon his gender) did not give rise to an actionable Title VII claim. Id. The court also flatly rejected plaintiff’s argument that his case was distinguishable from Spearman because the plaintiff in that case was a homosexual, and he was not. Id. at 1065. The court explained that “we do not focus on the sexuality of the plaintiff in determining whether a Title VII violation has occurred.” Hamm, 332 F.3d at 1065. The Hively En Banc Decision The en banc decision greatly departed from the panel’s holding on this issue. The court began by discussing the different methods of statutory interpretation, including applying a strict interpretation of the statute or reviewing the legislative history. Hively, 853 F.3d at 343. Having explored the various methods, the court noted that the agency most familiar with the statute is the EEOC. Id. at 344. In 2015, the EEOC took the position that “sex” discrimination as set forth in Title

VII encompasses discrimination on the basis of a person’s sexual orientation. Id., referencing Baldwin v. Foxx, EEOC appeal no. 01201133080, 2015 WL 4397641 (July 15, 2015). The court acknowledged that it is not required to follow the Commission’s position. Hively, 853 F.3d at 344. However, the court also found that “the Commission’s position may have caused some in Congress to think that legislation is needed to carve sexual orientation out of the statute, not to put it in.” Id. (emphasis in original). The court relied upon the Supreme Court’s approach in a closely related case, Oncale, which addressed the issue of whether Title VII covers sexual discrimination by a man on a male victim. Id., citing Oncale, 523 U.S. at 79-80. In Oncale, the Supreme Court noted that “‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.’” Hively, 853 F.3d at 344, quoting Oncale, 523 U.S. at 79-80. There, the Supreme Court found that “Title VII prohibits ‘discriminat[ion]… because of…sex’ in the ‘terms’ or ‘conditions’ of employment.” Hively, 853 F.3d at 344, quoting Oncale, 523 U.S. at 79-80. The Hively court applied a comparative method in analyzing whether Hively’s sex played a role in Ivy Tech failing to promote Hively and eventually firing her. Hively, 853 F.3d at 345. Hively argued that if she was a man and married to a woman, and everything else stayed the same, she would not have suffered the adverse employment consequences that she did. Id. The court noted that Hively represents the essence of a non-conformity case as she is allegedly being discriminated based upon the “ultimate case of failure to conform to the female stereotype”—that a woman be in a heterosexual relationship with a

An association discrimination case exists if the alleged discrimination involves a person’s race, national origin, religion, or as in this case, the sex of the associate.

man. Id. at 346. The court concluded that there is no difference between a claim based upon ones sexual orientation and a gender non-conformity claim. Id. The court referenced the Supreme Court’s opinion in Price Waterhouse v. Hopkins in which the plaintiff alleged that Price Waterhouse discriminated against employees for being too “masculine.” Id., citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). It pointed to other Supreme Court precedent finding that an employer violated Title VII for refusing to hire women with pre-school age children, but not men. Hively, 853 F.3d at 346, citing Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971). Following that, the Seventh Circuit held that United Airlines violated Title VII by requiring female employees to be unmarried. Hively, 853 F.3d at 346, citing Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971). The court noted that the rules in these two cases do not affect every woman in the workforce. Hively, 853 F.3d at 346. Similarly, in this case, discrimination based upon one’s sexual orientation does not affect every woman or every man. Id. However, sexual orientation discrimination is based upon assumptions regarding the appropriate behavior for someone of a given sex. Id. The discrimination does not occur in the absence of taking the employee’s biological sex into account. Id. at 346-47. In referencing a person’s

“biological sex” the court recognized that sex is either “as observed at birth or as modified, in the case of transsexuals.” Id. at 347. The court stated that, “[a]ny discomfort, disapproval, or job decision based on the fact that the complainant— woman or man—dresses different, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.” Id. The court also agreed with Hively’s argument that sexual orientation discrimination is prohibited based upon the associational theory. Hively, 853 F.3d at 347. This theory is that a “person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.” Id. This type of case was first acknowledged based upon racial discrimination in the Loving line of cases. Id. In Loving, the Supreme Court held that “‘restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.’” Id. quoting Loving, 388 U.S. at 12. This type of case was illustrated in Parr v. Woodmen of the World Life Ins. Co., which involved a white man who filed a claim for discrimination relating to his marriage to an African American woman. Hively, 853 F.3d at 347, citing Parr v. Woodmen of the World Life Ins. — Continued on next page

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Feature Article | continued

Co., 791 F.2d 888 (11th Cir. 1986). The district court dismissed Parr’s claim because he was white. Hively, 853 F.3d at 347. The court of appeals reversed, holding that “‘[w]here a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race.’” Id. at 347-48, quoting Parr, 791 F.2d at 892. Similarly, in Holcomb v. Iona College, the Second Circuit found that a white college basketball coach was discriminated against because he was married to an African American woman. Hively, 853 F.3d at 348, citing Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008). “The court held ‘that an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race.’” Hively, 853 F.3d at 348, citing Holcomb, 521 F.3d at 132. The Seventh Circuit has not considered a case exactly like Parr or Holcomb. Hively, 853 F.3d at 348. However, the Seventh Circuit has decided a similar case, Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878 (7th Cir. 1998). In Drake, white employees sued their employer claiming that they were subjected to a hostile work environment because they associated with African American coworkers. Hively, 853 F.3d at 348, citing Drake, 134 F.3d 878. The defendant agreed that employees had properly asserted an associational race discrimination claim under Title VII. Therefore, the Seventh Circuit did not have much to do other than state that the key question in an association discrimination case is whether the employee experienced discrimination and, if so, whether it was because of race. Hively, 853 F.3d at 348, citing Drake, 134 F.3d at 884. As in Loving, where the Supreme 30 | IDC QUARTERLY | Third Quarter 2017

Court considered the race of only one individual in order to determine the legality of the conduct, the Hively court found the same analogy present. Hively, 853 F.3d at 348. Here, if either Hively or her spouse were a different sex, then the outcome would be different. Id. at 349. The court found that “the discrimination rests on distinctions drawn according to sex.” Id. An association discrimination case exists if the alleged discrimination involves a person’s race, national origin, religion, or as in this case, the sex of the associate. Id. The court described the essence of the claim as, “the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.” Id. The court not only considered the Supreme Court’s decisions in the area of employment discrimination, but also in a broader context of sexual orientation discrimination. Id. For instance, the Supreme Court held that a provision in Colorado’s Constitution, which prohibited any act by the government to protect homosexuals, lesbian or bisexual persons, violated the Equal Protection Clause. Id. citing Romer v. Evans, 517 U.S. 620, 624 (1996). Similarly, the Supreme Court held that a Texas statute banning homosexual intimacy violated the Due Process Clause. Hively, 853 F.3d at 349, citing Lawrence v. Texas, 539 U.S. 558 (2003). In 2013, the Supreme Court held that a provision in the Defense of Marriage Act excluding a same-sex partner from the definition of “spouse” in other federal statutes violated basic due process and equal protection principles. Hively, 853 F.3d at 349, citing U.S. v. Windsor, 133 S. Ct. 2675 (2013). Finally, the Supreme Court held that the right to marry is a fundamental liberty right protected both by the Due Process and Equal Protection Clauses of the Four-

teenth Amendment. Hively, 853 F.3d at 349, citing Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015). Based upon these precedents from the Supreme Court, which showed a change in the handling of cases involving sexual orientation, the Seventh Circuit felt compelled to reverse its prior precedents and the decision of the panel in Hively to hold that sexual orientation is protected under Title VII.

If the Seventh Circuit is correct in predicting how the Supreme Court will decide this matter, employers and their counsel will need to amend policy manuals and procedures to reflect this change. Effect of Hively Decision As this is the first decision to recognize such a claim and because it is in conflict with every other decision before it, it is likely that a writ of certiorari will be filed and it has a better than normal chance of being granted. If the Seventh Circuit is correct in predicting how the Supreme Court will decide this matter, employers and their counsel will need to amend policy manuals and procedures to reflect this change. This, of course, assumes employers have not already done so for legal and/or business reasons. If this decision stands, it may also implicate changes for how sexual orientation will be handled by the courts in the Title IX context.

Commercial Law James K. Borcia Tressler LLP, Chicago

Patent Holders Can No Longer Choose Plaintiff-Friendly Courts In a decision that will change the landscape of patent litigation, the United States Supreme Court unanimously overruled a Federal Circuit decision that had been in place for almost 30 years that allowed patent infringement suits to be filed almost anywhere in the country. TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017). Under the patent statute, 28 U.S.C. § 1400(b), a patent infringement action may be brought in the district where the defendant resides or where the defendant has committed acts of infringement and has a regular and established place of business. In TC Heartland LLC v. Kraft Foods Group Brands LLC, the Supreme Court held that the word “resides” in the patent venue statute, “refers only to the State of incorporation” of the alleged infringer. TC Heartland LLC, 137 S. Ct. at 1515. This case has an interesting procedural posture. It stems from a denial of a writ of mandamus by the Federal Circuit that arose from a denial of a motion to dismiss on, among other things, venue grounds. The litigation was initiated in the United States District Court for the District of Delaware pending, by Kraft Foods against TC Heartland. TC Heartland is incorporated in Indiana, and has its headquarters in Carmel, Indiana. TC Heartland alleged that it had no contacts with Delaware other than approximately 2% of its alleged infringing product ending up there. As such, TC Heartland moved to transfer venue to Indiana, which was denied. The Federal Circuit

concluded that the 28 U.S.C. § 1391(c) defined “resides” in § 1400(b) and found that TC Heartland resided in Delia TC Heartland sought a narrow interpretation of the statute that determines the venues a patent infringement case can be brought. Conversely, Kraft Foods argued that a narrow interpretation of the statute would unfairly disadvantage patent owners relative to accused infringers. The Supreme Court emphasized that had Congress intended to expand the definition of residence in the patent venue statute beyond the state of incorporation it would have done so unambiguously. TC Heartland LLC, 137 S. Ct. at 1515. In doing so, the Court began by recounting the history of the patent venue statute. Venue for patent litigation is controlled by 28 U.S.C. § 1400(b): Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business. 28 U.S.C. § 1400(b). However, the general venue statute states: [A]n entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if

a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question and, if a plaintiff, only in the judicial district in which it maintains its principal place of business. 28 U.S.C. § 1391(c)(2). The Supreme Court narrowed the question it was deciding to “whether Congress changed the meaning of § 1400(b) when it amended § 1391.” TC Heartland LLC, 137 S. Ct. at 1520. In answering the question in the negative, the Court pointed out that Congress ordinarily provides a clear indication of its intent in the text of the amended provision. Id. This clear indication was missing from § 1391, according to the Court. This decision could result in the loss of “home court” advantage, and will likely make it more difficult to sue multiple infringers located in different states. Accused infringers, on the other hand, will be less likely to be sued in remote locations that are otherwise unrelated to the case. The so-called “patent trolls”—firms that hold patents not to make products but for the purpose — Continued on next page

About the Author James K. Borcia is a partner with the Chicago firm of Tressler LLP, and is active in the firm’s litigation practice with an emphasis on commercial and complex litigation. He was admitted to the bar in 1989 after he received his J.D. from Chicago-Kent College of Law. Mr. Borcia is a member of the Chicago and Illinois State Bar Associations, as well as the IDC and DRI.

Third Quarter 2017 | IDC QUARTERLY | 31

Commercial Law | continued

Professional Liability John F. Watson Craig & Craig, LLC, Mattoon

Accused infringers, on the other hand, will be less likely to be sued in remote locations that are otherwise unrelated to the case.

of asserting them in litigation—should be particularly impacted by this decision. The business model for these entities often entails suing alleged infringers in patent-friendly venues like the United States District Court for the Eastern District of Texas in an attempt to extort settlements from accused infringers. The outcome of this case should severely curtail such activity. For years, patent holders forumshopped to find a venue that was especially friendly to plaintiffs, such as the Eastern District of Texas. A high volume of patent cases in the last few years have been filed in this rural district even though few companies have real contacts with it. This is especially true of so-called patent trolls. This is a big victory for companies that have been forced to deal with frivolous patent suits in Texas. However, patent law practitioners can expect to see an increase in these suits in Delaware, where many companies are incorporated.

32 | IDC QUARTERLY | Third Quarter 2017

Yannello v. Park Family Dental: The Limits of the Use of Demonstrative Evidence by an Expert in a Professional Negligence Action In nearly every professional negligence case, expert witness testimony is required to establish a standard of care or conduct. Garley v. Columbia LaGrange Mem. Hosp., 351 Ill. App. 3d 398, 405 (1st Dist. 2004) (citing Dolan v. Galluzzo, 77 Ill. 2d 279, 285 (1979) (expert witness testimony required in a medical malpractice action); see also Mississippi Meadows, Inc. v. Hodson, 13 Ill. App. 3d 24, 28 (3d Dist. 1973) (judgment reversed in an architect malpractice matter with the court discussing that lack of expert testimony to support the purported standard of conduct); Brainerd v. Kates, 68 Ill. App. 3d 781, 786 (1st Dist. 1979) (expert testimony essential in a legal malpractice action). Expert witnesses frequently use demonstrative aids to help explain or illustrate their testimony. The Illinois Appellate Court Third District recently reviewed the extent to which a medical expert could use a demonstrative aid to illustrate his opinions, and the extent to which counsel could use the demonstrative aid in cross-examination and closing argument. Yannello v. Park Family Dental, 2017 IL App (3d) 140926. Yanello teaches a valuable lesson in not only disclosing and presenting demonstrative evidence that may become, in part, real evidence, but also in timely objecting to an opponent’s presentation of demonstrative evidence that becomes real evidence.

In Yannello, the plaintiff brought a professional negligence action against a dentist for negligently placing certain dental implants. Yannello, 2017 IL App (3d) 140926, ¶ 1. The defense called Dr. Nicholas Panomitros as its liability expert. Id. ¶ 14. During the testimony of Dr. Panomitros, defense counsel displayed an actual human skull and a model skull. Id. ¶ 15. Plaintiff’s counsel objected to the demonstration on the grounds of insufficient foundation that the skulls were a true and accurate representation of the plaintiff’s anatomy, the skulls were not disclosed prior to trial under Illinois Supreme Court Rule 213, the skulls were irrelevant and misleading to the jury, and that the use of the skulls was more prejudicial than probative. The trial court

About the Author John F. Watson is a partner with Craig & Craig, LLC in the Mattoon office. Mr. Watson graduated with a Bachelor of Science in Mechanical Engineering from Bradley University in 1990 and received his J. D., with Honors, from The John Marshall Law School in 1993. During law school, Mr. Watson served as an Associate Editor for The John Marshall Law Review. Mr. Watson’s fields of practice include general civil litigation, medical malpractice defense, municipal liability defense, insurance coverage and insurance law, intellectual property and criminal defense litigation.

overruled the objections and allowed the defense to use the skulls as demonstrative evidence. Id. ¶ 14. Physical objects that have a direct part in the incident at issue are considered to be real evidence. Id. ¶ 29 (citing Sharbono v. Hilborn, 2014 IL App (3d) 1205971 ¶ 70 and Ill. R. Evid. 401 (eff. Jan. 1, 2011)). On the other hand, a physical object that does not have a direct involvement in the incident and that is used only to help explain or illustrate the verbal testimony of the witness is considered demonstrative evidence. Yannello, 2017 IL App (3d) 140926, ¶ 29 (citing Sharbono, 2014 IL App (3d) 1205971, ¶ 30 and Michael H. Graham, Graham’s Handbook of Illinois Evidence § 401.02, at 159 (10th ed. 2010)). In other words, demonstrative evidence has no probative value in and of itself, and is admitted merely as an aid to the trier of fact to understand the evidence. Yannello, 2017 IL App (3d) 140926, ¶ 29 (citing Cisarik v. Palos Cmty. Hosp., 144 Ill. 2d 339, 341-42 (1991)). The appellate court recognized the substantial value of demonstrative evidence, but also warned that its great value can be abused if the demonstrative evidence is given an undue or misleading dramatic effect or emphasis at the expense of the real evidence. Yannello, 2017 IL App (3d) 140926, ¶ 30. Accordingly, a trial court must be careful to prevent or eliminate that abuse. Id. Under the facts of the case, the Third District determined that the expert’s use of the skulls as demonstrative aids abused the permitted purposes of demonstrative evidence, explaining that the skulls were not used merely to show the jury what the physician meant by certain terms, but rather that the expert used the skulls to undermine the plaintiff’s theory and provide substantive support for his

Care must be made to object at trial to any use of demonstrative evidence that goes beyond the mere illustration or explanation of a witness’ testimony. own opinions. Id. ¶ 34. The expert used the skulls to show that the defendant had placed the dental implants at certain angles, consistent with the angulation of natural teeth as shown by the skulls. Id. Further, he used the skulls to establish that there was a very thin level of bone available for the placement of the implants, and then testified that the angle of such implants was dictated by the limited amount of bone. Id. In doing so, the defense expert implicitly suggested that the anatomy depicted in the skulls was identical or similar to the plaintiff’s anatomy and used that fact to support his opinion that the placement was not negligent. Id. The Third District found that this use of demonstrative evidence went beyond the bounds of demonstrative evidence, and accordingly became real evidence. Yannello, 2017 IL App (3d) 140926, ¶¶ 34-36. Since the use of the skulls went beyond demonstrative evidence and became real evidence, there was a timely disclosure requirement pursuant to Illinois Supreme Court Rule 213(f)(3). Id. ¶ 36. Because the defendants failed to disclose the skulls as a basis for the expert medical opinions at trial, the trial court abused its discretion in allowing the defense, and the expert, to use the skulls. Id. ¶ 37. One other interesting aspect of the analysis was reference to the defense’s closing argument. Id. ¶ 34. During closing argument, defense counsel argued that the defendant’s placement of implants was proper because “the

skull [the defense expert] used ‘show[ed] the curvature of the jaw,’ and that [the defendant] had to ‘put the implant where the bone is there.’” Id. ¶ 34. The Third District found this argument improper because it reinforced the impression that the skulls were in fact real evidence supporting the defense theory. Id. ¶ 34. Yannello teaches us that when presenting demonstrative evidence, special attention should be given in making a full and timely Rule 213(f)(3) disclosure of known demonstrative evidence in the event that it becomes real evidence. There are times when all trial preparations cannot be anticipated. However, in speaking with your defense experts, efforts should be made to determine whether there are any diagrams, textbook illustrations or anatomy models that the expert might use during the course of trial. Providing as much detail with regard to those exhibits could prevent such problems during the course of trial and on appeal. Finally, it is common for plaintiffs’ experts to use anatomy models or illustrative diagrams to help explain their opinions. Care must be made to object at trial to any use of demonstrative evidence that goes beyond the mere illustration or explanation of a witness’ testimony. If the testimony using the demonstrative aid become real evidence, a timely objection must be made. Further, objection should be made during closing argument if counsel’s argument reinforces an impression to the jury that demonstrative evidence is in fact real evidence. Third Quarter 2017 | IDC QUARTERLY | 33

Feature Article Andrew C. Corkery Boyle Brasher LLC, Belleville

Limitation of Liability Actions for the Non-Admiralty Practitioner Imagine you represent a railroad whose bridge is hit by a boat and the damage caused to the bridge may result in a derailment or other subsequent damage. Or, you represent a trucking company making deliveries to a dock when the dock is struck by a boat, resulting in injuries and damages. Or, imagine that you represent an individual, through subrogation or otherwise, on a Sea-doo struck by a boat. In all of these situations, your first instinct regarding your client’s claims for damages and in the defense of any claims against your client would be that the boat company is primarily responsible. However, the boat company has a “limitation of liability” defense available to it that may mean your client will not have a right to a trial by jury on its claim, and the boat company’s damages may be capped. Practitioners of admiralty and maritime law are familiar with this litigation device. However, practitioners in other areas of law may be surprised how the limitation works. This article provides an overview of a limitation of liability action. Practitioners must realize the nuances of this unique action and act accordingly from the beginning of litigation; or risk having a client’s rights barred and exposed to a greater share of liability. Limitation of Liability Act The Limitation of Liability Act (the “Act”), 46 U.S.C.A. § 30505, allows a vessel owner to limit his or her liability 34 | IDC QUARTERLY | Third Quarter 2017

to the value of the owner’s interest in the vessel and its pending freight where an injury or loss occurs without the ship owner’s privity or knowledge. 46 U.S.C.A. § 30505; Universal Towing Co. v. Barrale, 595 F.2d 414, 417 (8th Cir. 1979); In re MO Barge Lines, Inc., 360 F.3d 885, 890 (8th Cir. 2004). The ship owner can also move for an exoneration from liability in which the owners claims it is not liable for any damages. Congress intended the Act to encourage investment in the shipping industry. Norwich N.Y. Transport Co. v. Wright, 80 U.S. 104, 105 (1871). However, as the United States Supreme Court has noted, the Act is not a model of clarity. Lewis v. Lewis and Clark Marine, 531 U.S. 438, 447 (2001). The first step in assessing whether a limitation of liability scenario is at issue is to determine if jurisdiction would be proper. The Act does not provide an independent source of admiralty jurisdiction and jurisdiction must meet the usual test for admiralty tort jurisdiction. See Fed. R. Civ. P. Supp. AMC R. F. To establish admiralty jurisdiction, a ship owner must show that the tort occurred on navigable waters and bears a significant relationship to traditional maritime activity. See Deep Sea Tankers Ltd. v. The Long Branch, 258 F.2d 757, 770 (2d Cir. 1958). If a party cannot establish admiralty jurisdiction, then that party cannot obtain a limitation. The Seventh Circuit Court of Appeals analyzed a case where a dredging company tasked with placing pile clusters along the Chicago River allegedly

caused a crack in the foundation that caused flooding in Chicago’s business district. Great Lakes Dredging and Dock v. Chicago, 3 F.3d 225 (7th Cir. 1993). The Seventh Circuit found the allegations constituted traditional maritime activity even though much of the damage occurred on land. Great Lakes Dredging and Dock, 3 F.3d at 228-30. In cases involving recreational boats, there are often issues as to whether the activity affects interstate commerce. Sisson v. Ruly, 497 U.S. 358 (1990), involved a fire on a pleasure yacht docked at a recreational marina. The Supreme Court found admiralty jurisdiction exists if the incident creates a “potential hazard to maritime commerce.” Sisson, 497 U.S. at 358. When encountering a limitation action, always review Rule F of the Supplemental Rules of Federal Civil Procedure for Certain Admiralty and Maritime Claims that lays out the controlling rules for the action. An owner seeking to invoke the Act must petition the district court for limitation of liability and must deposit an amount equal to the value of the interest in the vessel and its freight with the court, or give security for such value. 46 U.S.C. § 30511; Fed. R. Civ. P. Supp. AMC R. F(1). Pursuant to Rule F(3), upon application of the owner, the court shall enjoin any action

About the Author Andrew Corkery is a partner at Boyle Brasher LLC in Belleville Illinois. His practice concentrates on defense of transportation and medical malpractice cases. Mr. Corkery is a cum laude graduate of St. Louis University School of Law. He serves on the IDC Amicus committee.

or proceeding against the boat owner or the boat owner’s property with respect to any claim subject to the limitation. Fed. R. Civ. P. Supp. AMC R. F(3). Thus, numerous actions could be stayed where a boat is at the center of the litigation. The limitation of liability action may also be initiated or raised as an affirmative defense. Fed. R. Civ. P. Supp. AMC R. F(9). A limitation of liability action cannot be brought in, or raised as, an affirmative defense state court. The ship owner must file its petition with the court within six months of the notice of claim and must do so in the proper venue Karim v. Finch Shipping Co., 265 F.3d 258, 263 (5th Cir. 2001); Fed. R. Civ. P. Supp. AMC R. F(4) (5)-(6). Rule F(9) identifies the proper venue as any district in which the vessel has been attached or arrested. There has been dispute about the meaning of district under Rule F(9). See Ray C. Dripps & Courtney C. Stirrat, The Works: Jurisdiction and the Limitation Act, The St. Louis Bar Journal, Winter 2016, at 22. Many Courts have found that “district” refers not just to a judicial district, but to a geographical district. See id. at 22 (citing Matter of Am.River Transport, 864 F. Supp. 554, 556 (E.D. La. 1994)). Once the ship owner submits to the jurisdiction of the court by filing a limitation of liability petition, the ship owner must accept the burdens, not just the benefits, of being in federal court and will not be allowed to later obtain a voluntary dismissal of the petition. Karim, 265 F.3d at 265-66. The vessel owner has the burden of complying with the Act. If there is a failure to comply with any of the regulations discussed above, the limitation may be defeated. After the ship- owner files, a monitions period will be initiated. Any party with

The critical issue in many limitation actions is whether the ship owner has privity and knowledge of the negligence. Unlike common law actions, in a limitation of liability action, liability of the ship owner cannot be established by respondeat superior. In other words, showing that the pilot, an employee of the boat company, was negligent does not defeat the limitation of liability action.

a damages claim against the ship-owner must file a claim within that period or risk that their claims barred. Lloyd’s Leasing LTD. v. Bates, 902 F.2d 368, 370 (5th Cir. 1990). Therefore, if you represent a party that has a damages claim, you must act quickly to protect their rights. There is no right to trial by jury when the case is in federal court pursuant to the court’s admiralty jurisdiction. Federal Rule of Civil Procedure 38 does not create a right to a jury trial on issues in admiralty or maritime claims. However, the court, on motion or on its own, may allow an advisory jury to try any issue. Fed. R. Civ. P. 39(c). A practitioner must be aware if a client’s cause of action could be part of a limitation action because the lack of a jury may change the evaluation of the case. Privity and Knowledge The critical issue in many limitation actions is whether the ship owner has privity and knowledge of the negligence. Unlike common law actions, in a limitation of liability action, liability of the ship owner cannot be established by

respondeat superior. In other words, showing that the pilot, an employee of the boat company, was negligent does not defeat the limitation of liability action. To determine an owner’s entitlement to limit its damages, the court must employ a two-part analysis and determine (1) whether negligence or unseaworthiness caused the accident, and (2) whether the ship-owner was in privity to, or had knowledge of, the causative agent. 46 U.S.C.A. § 30505. Errors in navigation or other negligence by master or crew are not attributable to the ship owner for limitation purposes. Carr v. PMS Fishing Corp., 191 F.3d 1, 4 (1st Cir. 1999); Mac Towing, Inc. v. Am. Commercial Lines, 670 F.2d 543, 548 (5th Cir. 1982). In a limitation of liability action, the burden is on the party opposing the limitation to show negligence and/or unseaworthiness. Mac Towing, 670 F.2d at 548. Once shown, the burden then shifts to the ship owner to show the ship-owner had no privity or knowledge of the alleged negligence. This burden-shifting framework can impact scheduling orders and issues related to expert disclosures. — Continued on next page

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Feature Article | continued

Privity means some personal participation of the ship owner in the fault or negligence that caused or contributed to the loss or injury. Coryell v. Phipps, 317 U.S. 406, 411 (1943). Examples of when an owner has privity and knowledge include: • •

•

•

A vessel outfitted with insufficient navigation equipment; The failure of the ship owner to use due diligence to make sure boat is seaworthy; The failure to provide a crew that is not properly trained or experienced; and The existence of unseaworthy conditions at the commencement of the voyage.

In re Texaco, 570 F.Supp. 1272, 1291 (E.D. La. 1983) (insufficient navigation equipment); Admiral Towing Co. v. Woolen, 290 F.2d 641, 649 (9th Cir. 1961) (lack of due diligence); In re Messina, 574 F.3d 119, 127 (2d Cir. 2009) (improperly trained or inexperienced crew); Dover Barge Co. v. Tug Crow, 642 F. Supp.2d 266, 275 (S.D. N.Y. 2009) (unseaworthy conditions). Analysis of case law regarding the application of the privity and knowledge standard shows how difficult it can be to assess the boat owner’s responsibility. In a case arising out of an oil spill off the coast of Brittany, France, the Seventh Circuit found that even though employees of another company negligently maintained the boat and negligently trained the crew, the acts were within the privity and knowledge of the boat owners because the boat owner had a non-delegable duty to maintain the ship in seaworthy condition to control and supervise the crew. Matter of Oil Spill by Cadiz off Coast of France on Mar. 36 | IDC QUARTERLY | Third Quarter 2017

16, 1978, 954 F.2d 1279, 1304 (7th Cir. 1992). However, in a case where a runaway barge struck the Admiral floating casino, the Eighth Circuit Court of Appeals reversed the district court’s finding of privity and knowledge. In re American Milling, Ltd., 409 F.3d 1005 (8th Cir. 2005). The court found that the damage was the result of a “maneuvering error or some other mistake that was tantamount to momentary error” by the pilot. In re America Milling, 409 F.3d at 1019-20. The court found that the ship owner did not have privity and knowledge of this error and was entitled to limitation. Id. at 1018. Whether privity and knowledge can be established on part of the boat owner turns on the particular facts of each case and often does not fall into clear-cut categories. Exceptions to the Limitation Act The tension between a party’s Seventh Amendment right to trial by jury and the absence of that right in a in a limitation action, has lead courts to recognize two exceptions that allow a party to proceed in another forum (with a jury if they desire). Lewis v. Lewis and Clark Marine, 531 U.S. 438 (2001). The first exception concerns cases where the limitation fund exceeds the total amount of all claims. Universal Towing v. Barrale, 595 F.2d 414, 418 (8th Cir. 1979). The second exception “exists if there is only one claim which exceeds the value of the fund.” Lewis, 531 U.S. at 451; Beiswenger Enters. Corp. v. Carletta, 86 F.3d 1032 (11th Cir. 1996); Universal Towing, 595 F.2d at 418-19. The so-called “single claim exception” applies in circumstances involving, obviously, a single claimant. Universal Towing, 595 F.2d at 414. It also applies in circumstances

involving multiple claimants, who may litigate liability and damages issues in another forum as long as all claimants agree to file stipulations that protect the ship owner’s right to have a federal court, sitting in admiralty ultimately adjudicate its claim to limited liability. Universal Towing, 595 F.2d at 414. Counsel will need to assess whether any of these exceptions apply and whether to proceed with these exceptions. Lewis v. Lewis and Clark Marine, 531 U.S. 438 (2001) illustrates some of the issues that can arise under these exceptions. In Lewis, the plaintiff filed a Jones Act case in Madison County, Illinois without requesting a jury. The boat owner filed a limitation of liability action in federal court in Missouri. Lewis, 531 U.S. at 441. The plaintiff sought to dissolve the stay by filing a stipulation that the amount would not exceed the value of the boat. Id. The Supreme Court found that plaintiff was entitled to file his stipulation and proceed with his case in state court because the purpose of the limitation act was protected. Other Issues in Limitation of Liability Actions Boat Ownership Another issue to consider is the identity of the ship owner. Only the ship owner can obtain a limitation. If the party does not own the ship, it cannot take advantage of the limitation of liability action. Courts have expanded the definition of owner or charterer to include parties in analogous situations who exercise dominion and control over a vessel and are therefore owners pro hac vice even if not technically charterers. See In re American Milling, 409 F.3d at 1014 (citing Petition of the United States,

Only the ship owner can obtain a limitation. If the party does not own the ship, it cannot take advantage of the limitation of liability action.

259 F.2d 608, 609 (3d Cir. 1958)); see also In re Complaint for Exoneration From Limitation of Liability of Shell Oil Co., 780 F. Supp. 1086, 1089-90 (E.D. La. 1991). The question in general, then, is whether a party who claims the status of owner exercised sufficient dominion and control over the vessel to be an owner pro hac vice even though neither technically is a title-holding owner nor a charterer. In re American Milling, 409 F.3d at 1014. Thus, determining who qualifies as an owner may be fact dependent. Value of the Fund One of the first issues to consider in a limitation action is what is included in the limitation fund. Limitation funds cannot support the limitation of liability action if the ship owner has not deposited a sum equal to the amount of the value of the owner’s interest in the vessel and pending freight for the benefit of claimants or transfer’s interest in pending freight and the vessel to a court designated trustee. Fed. R. Civ. P. Supp. AMC R. F(1); 46 U.S.C.A. § 30505. Generally, insurance proceeds are not included in the limitation fund. In re Paradise Holdings, Inc., 795 F.2d 756 (9th Cir. 1986). In situations where there are claims for personal injury or death, there will be an increase in limitation funds to $420 per gross ton. 46 U.S.C.A. § 30506. That amount may be used only to pay for claims of personal injury or

death. In re Paradise Holdings, 795 F.2d 756 (1986). In short, if you have a serious injury and/or serious property damage, it is unlikely that the fund will have sufficient funds. Damages Generally, admiralty damages follow the common law for damages. However, if there is no physical damage to a party’s property then economic damages cannot be recovered. Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 308-309 (1927). Thus, you could be in a situation where damages such as labor costs, delay costs, and lost profits that would ordinarily be recoverable in tort law, are not recoverable in admiralty. On the other hand, the Second, Fourth, Sixth, Seventh, and Ninth Circuits have stated that Robins Dry Dock & Repair Co. v. Flint, allows recovery for economic damages absent a physical injury to proprietary interests if such damages are sufficiently direct and foreseeable. See Michael P. Sullivan, Annotation, Robins Dry Dock Doctrine limiting recovery for economic losses due to unintended maritime torts, 88 A.L.R. Fed. 295 (1988). Rejecting the bright line test, courts have adopted the position that a party may recover for damages for economic losses resulting from property damage that was caused by an unintentional maritime tort, despite not having a proprietary interest in the property damaged, if the losses were

not remote or unforeseeable. Petitions of Kinsman Transit Co., 388 F.2d 821, 824 (2d Cir. 1968); see also Venore Transp. Co. v. M/V Struma 583 F.2d 708, 711 (4th Cir. 1978); In re Complaint of Marine Navigation Sulphur Carriers, Inc., 507 F. Supp. 205, 210 (E.D. Va. 1980); In re Complaint of Bethlehem Steel Corp., 631 F.2d 441, 448 (6th Cir. 1980). The court in In re Complaint of Bethlehem Steel held that there is no absolute rule in the United States that forbids recovery of economic losses where the claimant has suffered no physical injury to a proprietary interest in cases of unintentional maritime tort. The court further stated that American law allows recovery of economic damages which are direct and foreseeable. In re Bethlehem Steel, 631 F.2d at 448. If you have a case under admiralty jurisdiction, be mindful that damages may not be as clear-cut as they would be in a general tort course. Conclusion The article is intended to provide the practitioner with an overview but not a complete examination of the issues involved in a limitation of liability action. Every decision an attorney makes from the moment of filing for limitation must take into account the unique challenges that arise under this scenario. Failure to act quickly may have serious repercussions for your client, both in defending claims and in prosecuting claims for your client’s damages.

Third Quarter 2017 | IDC QUARTERLY | 37

Insurance Law Update Melissa A. Anderson Cassiday Schade LLC, Chicago

Triggering the Duty to Defend: Pleading Vicarious Liability It is a basic tenet of Illinois insurance coverage law that a carrier cannot refuse to defend a putative insured unless it is clear from the face of the underlying lawsuit that the allegations fail to state a claim within, or potentially within, the coverage provided by the insurance policy. Pekin Ins. Co. v. Pulte Home Corp., 404 Ill. App. 3d 336, 340 (1st Dist. 2010). Whether a pleading presents the potential for coverage is often at issue in cases where the operative additional insured endorsement requires imputed or vicarious liability for coverage to apply.

liability for acts or omissions of “agents, servants, or employees” insufficient where named insured/subcontractor not named in complaint; no duty to defend general contractor); American Country Ins. Co. v. Cline, 309 Ill. App. 3d 501 (1st Dist. 1999) (no duty to defend general contractor where underlying pleadings raised the possibility of negligence on the part of multiple parties and not solely that of the named insured/subcontractor); American Country Ins. Co. v. Kraemer Bros, Inc., 298 Ill. App. 3d 805 (1st Dist. 1998) (no duty to defend general contrac-

Whether a pleading presents the potential for coverage is often at issue in cases where the operative additional insured endorsement requires imputed or vicarious liability for coverage to apply.

The question of what is required to be pled in this scenario has been addressed by Illinois courts with varying outcomes. See L.J. Dodd Constr., Inc. v. Federated Mut. Ins. Co., 365 Ill. App. 3d 260 (2d Dist. 2006) (no duty to defend where the underlying lawsuit did not name the named insured/subcontractor as a defendant or allege negligence by the named insured/subcontractor); American Country Ins. Co. v. James McHugh Constr. Co., 344 Ill. App. 3d 960 (1st Dist. 2003) (general contractor’s alleged 38 | IDC QUARTERLY | Third Quarter 2017

tor where only allegations of negligence against named insured/subcontractor were pled in a third-party complaint filed by the general contractor; negligence of a subcontractor’s employee cannot be imputed to the general contractor). But see, West Bend Mut’l Ins. Co. v. Sundance Homes, Inc., 238 Ill. App. 3d 335 (1st Dist. 1992) (duty to defend under additional insured endorsement providing coverage for liabilities for bodily injury imputed to additional insured as a result of the actions or conduct of named

insured due to allegations contained in third-party complaint); Illinois Emasco Ins. Co. v. Northwestern Nat’l Cas. Co., 337 Ill. App. 3d 356 (1st Dist. 2003) (duty to defend found under endorsement requiring “imputed liability” because the possibility of coverage could not be ruled out). In Pekin Insurance Company v. CSR Roofing Contractors, Inc., 2015 IL App (1st) 142473, the Appellate Court of Illinois, First District, addressed an additional insured endorsement that limited the scope of coverage with respect to vicarious liability for damage imputed from the named insured to the additional insured as a proximate result of the named insured’s ongoing operations performed for the additional insured. There, the court found that Pekin Insurance Company (Pekin) owed a duty to defend a roofing contractor, CSR Roofing Contractors, Inc. (CSR), under a policy issued to CSR’s subcontractor, Zamastil Exteriors (Zamastil). Zamastil was not named as a defendant in the underlying complaint, but the court still found that the allegations suggested that CSR could be held vicariously liable for Zamastil’s actions. CSR Roofing Contractors, Inc., 2015 IL App (1st) 142473, ¶ 1. Among other things, the complaint alleged that CSR “had the authority to stop the work of its subcontractors when unsafe

About the Author Melissa A. Anderson is a partner in Cassiday Schade LLP’s Chicago office where she concentrates her practice on insurance coverage litigation. She received her undergraduate degree from the University of Iowa and her J.D. from Chicago-Kent College of Law.

working conditions existed” and failed to properly supervise its subcontractors, including Zamastil. Id. ¶ 11. The court stated that even though the allegations of negligence were not expressly alleged against Zamastil, its actions were “at the core” of the accident. Therefore, the court found that the allegations did not preclude the possibility that CSR could be found liable solely as a result of the acts or omissions of Zamastil, triggering the duty to defend. Id. ¶ 50. In Pekin Insurance Company v. Centex Homes, 2017 IL App (1st) 153601, the First District, recently affirmed its holding in CSR Roofing and, arguably, expanded the duty to defend. In Centex Homes, Scott Nowak (Nowak), an employee of McGreal Construction Company (McGreal), was injured while working on the construction of a building owned by Centex Homes (Centex), and filed a personal injury lawsuit against Centex and others. Pekin denied Centex’s tender and filed a declaratory judgment action. Centex Homes, 2017 IL App (1st) 153601, ¶ 1. The additional insured endorsement at issue in Centex Homes provided coverage to “any person or organization for whom you are performing operations, when you and such person or organization have agreed in a written contract effective during the policy period *** that you must add that person or organization as an additional insured on a policy of liability insurance.” Id. ¶ 6. The coverage afforded was also limited, “with respect to vicarious liability for ‘bodily injury’ or ‘property damage’ imputed from [the named insured] to the Additional Insured.” Id. Pekin asserted that the underlying lawsuit did not allege vicarious liability, a prerequisite to additional insured coverage under the policy. The court stated that

The court observed that under the Workers’ Compensation Act, 820 ILCS 305/5(a), employers are immune from tort liability such that an injured employee is precluded from naming his employer as a defendant. to determine whether a duty to defend was triggered under the endorsement, the underlying complaint must: 1) include allegations to support the potential that the named insured may be negligent; and 2) raise the potential that the additional insured could be found vicariously liable for that negligence. Id. ¶ 50. With respect to the first inquiry, the court stated that the complaint need not name McGreal as a defendant. According to the court, it was sufficient that the factual allegations in the underlying complaint supported a theory of recovery under which McGreal’s acts or omissions were the cause of Nowak’s injuries. The court observed that under the Workers’ Compensation Act, 820 ILCS 305/5(a), employers are immune from tort liability such that an injured employee is precluded from naming his employer as a defendant. Id. ¶ 36. As a result, the court concluded that the complaint should be read with the understanding that although not named, the employer may still be negligent. The court noted that the underlying complaint made clear that it was McGreal that was responsible for building the wall that fell and struck Nowak. The fact that the complaint also included allegations to support a finding of direct negligence against Centex was not determinative, as the court stated that the duty to defend is triggered by even one theory potentially falling within coverage. Id.

Having concluded that the first prong of the court’s inquiry was satisfied, the court then addressed whether the underlying complaint presented the potential that Centex could be vicariously liable for McGreal’s negligence. At the outset, the court rejected an analysis pursuant to Section 414 of the Restatement (Second) of Torts, noting that the Supreme Court has made clear that other than a limited exception, Section 414 deals with direct, rather than vicarious, liability. The court followed CSR Roofing and stated that it would avoid “parsing the underlying complaint for allegations of specific amount or level or type of control by the additional insured over the named insured.” Centex Homes, 2017 IL App (1st) 153601, ¶ 51. The court noted that the underlying complaint will often offer little guidance on the issue of vicarious liability, as the plaintiff is not likely to have information relative to the relationship between the parties or the degree of control that exists. As a result, the court concluded that boilerplate allegations that the named defendants acted “by and through their agents, servants and employees,” “participated in coordinating the work being done and designated various work methods,” and “[f]ailed to properly control and supervise the work of its subcontractor, McGreal Construction,” raised the potential that Centex could be vicariously liable for McGreal’s negligence. Id. ¶ 57. Third Quarter 2017 | IDC QUARTERLY | 39

Employment Law Julie A. Bruch O’Halloran Kosoff Geitner & Cook, LLC, Northbrook

Tips for Trying an Employment Case in Federal Court Over the past 24 years, I have had the privilege of trying employment discrimination and harassment lawsuits in federal courts in the United States District Courts for the Northern, Central, and Southern Districts of Illinois. An overwhelming number of those cases have been tried before a jury. Hopefully, the following tips will help you obtain the best result for your clients. Depose All Witnesses Who May Hurt You at Trial Many attorneys prefer not to depose every single potential witness identified by the plaintiff. If the plaintiff is married, always depose the plaintiff’s spouse so you can get a sense of whether the spouse is supportive of the plaintiff and whether the spouse will be sympathetic. Occasionally, a spouse will give testimony which is contradictory to the plaintiff. After once choosing not to depose a spouse in a wrongful termination case, at trial, it turned out that the plaintiff’s wife was close in age, appearance, family circumstances and residence to a member of the jury. This juror cried with the spouse during her testimony and ended up being the jury foreperson. Lesson learned. Begin with Jury Instructions Before developing a theme and organization of your case, begin working on your proposed jury instructions and verdict form. Do not put this off. The proper jury instructions can be critical

40 | IDC QUARTERLY | Third Quarter 2017

to whether you win or lose at trial. Start with the pattern instructions and then move on to researching any prior employment law cases that have been tried before your judge to get a sense of the judge’s willingness to permit non-pattern instructions. Next, find more recent employment cases that have gone to trial with a defense verdict and one or more of the same claims as in your case. Once located, log onto the electronic dockets and pull up the jury instructions that were given in the cases. If a case involves a unique claim, the research may need to be expanded outside of the jurisdiction. Also consider whether there are any appellate court decisions with pro-employer language in the ruling. There currently are no pattern instructions for procedural due process cases. For a good place to start, look at the instructions from Stallings v. Johnston City, et.al, Case No. 13-422-DRH (S.D. Ill. June 21, 2016) at Doc. 123 Using the 4.15 Special Verdict form in an American with Disabilities Act case is not recommended. The form requires jurors to unanimously agree on six separate issues: whether the plaintiff was disabled, was the plaintiff qualified, did the plaintiff request an accommodation, was the defendant aware of the plaintiff’s disability, did the defendant fail to provide the plaintiff with a reasonable accommodation, and would accommodating the plaintiff have posed an undue hardship for the defendant. See Fed. Civ. Jury Instr. 7th Cir. 4.15 (2010).

The problem with this verdict form is that the jurors may unanimously agree that the plaintiff has not met her burden of proof but disagree on the reason why. Some jurors may believe that the plaintiff did not request an accommodation, while others may find that accommodating the plaintiff would have posed an undue hardship. Using this verdict form may prevent a jury from deciding in your client’s favor when the jurors’ rationale for their decision varies. Select the Best Jury for Your Case As you develop themes for trial, consider what type of person would make the best jury based on the facts and circumstances of your case. Take time to develop voir dire questions that will best uncover positive and negative juror experiences that could color their view of your case. Most federal court judges do not allow attorneys to ask questions during voir dire. The following questions are helpful in finding your best jurors: •

•

•

Have you ever managed or supervised and/or hired or fired other employees? Have you ever taken part in an investigation of any employee for misconduct? Have you ever been responsible for human resources in the course of your employment?

About the Author Julie A. Bruch is a partner with O’Halloran Kosoff Geitner & Cook, LLC. Her practice concentrates on the defense of governmental entities in civil rights and employment discrimination claims.

•

•

•

•

Have you ever been terminated from a job and if so, under what circumstances? Do you believe the termination was improper? Do you or a close family member belong to a union? Have you or your family members ever filed a union grievance? Have you or someone close to you ever felt that you were treated unfairly by an employer? Have you, a family member or close friend ever filed a Charge of Discrimination with the Illinois Department of Human Rights or the Equal Employment Opportunity Commission? Who was the Charged filed against, what was the basis of the Charge, and what was the outcome? Were you satisfied with the handling and result of the Charge?

As you go through jury selection, keep in mind that you will never get all of the jurors you want. Divide prospective jurors into leaders and followers. Aim to keep as many pro-management leader jurors as possible. Do not waste strikes on potential plaintiff-minded jurors who are clearly followers. The followers are the least likely to be engaged during the trial, will not take notes, and may even doze off during witness testimony. It is very unlikely that such a juror will be able to make any convincing argument to the rest of the group to vote his or her way. Tell a Compelling Story During Opening The opening statement is your opportunity to explain the defense’s theory of the case to the jury. Since jurors have not heard the facts yet, their attention will be at its peak. Tell a story with a memorable theme and evidence that is

certain to come in during the trial. Many judges allow attorneys to use exhibits during opening statements if there are no objections to the document. Take advantage that opportunity to go through key documents during opening and tell the entire story in the way that benefits your client. Use your opening statement to explain why the expected evidence will show that plaintiff’s story is not credible. Since the plaintiff is typically the first witness in an employment case, alerting the jury to issues with plaintiff’s testimony will hopefully cause the jury to view such testimony with skepticism from the outset. Many attorneys tell the jury how the facts will be unfolding throughout the trial and that by the end a clear picture will emerge. If possible, paint that picture right at the beginning with documents. Draft a Careful Cross Examination of the Plaintiff If the budget permits, videotaping the plaintiff’s deposition is recommended. There is usually a noticeable disparity between a plaintiff’s demeanor during a deposition versus at trial. Ideally, the plaintiff will describe a key event calmly and dispassionately in the deposition which will contrast greatly with the plaintiff’s emotional state at trial when discussing the same incident. The best video clip will be a lengthy answer by the plaintiff so the jury can hopefully recognize that she is “acting” on the witness stand and is normally not as emotional as she appears. Keep in mind that most plaintiffs’ attorneys prepare their clients to virtually memorize their depositions prior to trial. Additionally, witnesses tend to have their guards down more often in a deposition than at trial. It is much easier to elicit

a flippant answer, arrogant gesture, or combative response during a deposition, which when caught on video and played back during trial can be very effective. No matter how well coached a plaintiff is, during trial there will invariably be embellished testimony. If the embellished testimony sounds implausible or is a stark contrast from the plaintiff’s testimony during the deposition or in response to written discovery, be prepared to highlight the change in testimony during cross examination. Since most jurors are non-management employees, there is a natural tendency for jurors to sympathize with the plaintiff, who as noted above is almost always the first witness on the stand. The goal should be to convince the majority of jurors by the end of your cross-examination that the plaintiff should not win. This is especially crucial when one or more of your supervisors is unlikeable, not a good manager, or disciplined the plaintiff harshly for what may appear to be a minor rule violation. A thorough plaintiff cross-examination can last a full trial day or longer, depending on the facts. Do not skimp or cut corners. Develop a list of open-ended questions that were not asked during the deposition and that you do not necessarily care how the plaintiff answers. Many plaintiffs will squirm and be uncomfortable with the questions because they are not expecting them and are unsure how to answer. Others will exaggerate and damage their credibility. Search out Unbiased Witnesses The most powerful witnesses for the defense are those persons who will support the defendant’s case but are not employed by the defendant. Seek out former employees who can verify the — Continued on next page

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Employment Law | continued

plaintiff’s poor performance or misconduct. Is there an employee of an outside vendor who has relevant information that will support the testimony of your management employees? If there are customers or clients who brought complaints about the plaintiff, get over any reluctance to drag that person into your client’s messy or embarrassing situation. Take advantage of these disinterested individuals’ credibility with the jury as someone who does not stand to gain by either side winning or losing. Use as Many Exhibits as Possible and Learn How to Properly Use the ELMO Defense attorneys regularly counsel management clients to document, document, document. Clients who follow such instructions make defense attorneys jobs much easier. Many jurors have commented after a trial on how much they were influenced by the employer’s documentation. Documentation helps bolster defense witnesses’ testimony and keeps the jury engaged during trial. Have all exhibits ready to go and cross-referenced with direct and cross-examinations. Avoid being the disorganized attorney fumbling around searching for documents while a witness is on the stand. Even though jurors will be given all of the exhibits to take back to the jury room during deliberations, do not expect that the jurors will actually go through those exhibits. The time to highlight exhibits is while a witness is on the stand. Place the exhibit on the ELMO and use the screen to the left to highlight important testimony. Never place your finger on the document itself to point out anything. Jurors trying to read the document will be irritated with your finger in the way. The same is true

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with underlining on the screen because it invariably covers up the writing below. If a document is especially damaging to the plaintiff, leave it on the ELMO even after moving on to a different topic. Once the document is taken off the ELMO, immediately clear off any markings on the screen. Do not leave markings on a blank screen and again risk irritating the judge and jurors. Better yet, if you are computer savvy, upload all of the exhibits onto your laptop and display the exhibits directly from your own computer. Use the Jury Instructions to Your Advantage During Closing Argument It is very important to go over the issues instructions and verdict forms during closing argument to ensure the jury understands the law and exactly what they are being asked to decide. Place the instructions on the ELMO as you highlight such instructions as: You must follow these instructions, even if you disagree with them. Each of the instructions is important, and you must follow all of them. In deciding [the plaintiff ’s] claims of discrimination and retaliation, you should not concern yourselves with whether defendants’ actions in terminating [the plaintiff] were wise, reasonable, or fair. Rather, your concern is only whether [the plaintiff] has proved that defendants terminated her because of her [protected class] or in retaliation for complaining of [protected class]-based harassment or discrimination.

Fed. Civ. Jury Instrs. 7th Cir. 1.01, 3.07 (2010). If a plaintiff is likeable or it appears that the discipline or termination was overly harsh, address that with the jury and remind them of their oath to follow the law, even if they disagree. Again, use the exhibits to tell the story and add emphasis. Exhibits help keep the jury focused during your closing and will provide structure and substance to your arguments. Juror-Submitted Questions and Ending the Trial Many federal court judges allow jurors to ask written questions of witnesses once the attorneys have finished their questioning. Do not be overly concerned by what may seem like pro-plaintiff or off-the-wall questions on irrelevant or ancillary issues. During my last three trials, jurors posed questions that caused the defense team great concern even though ultimately, the jurors from all three trials indicated that that majority of the jury voted for a defense verdict immediately upon beginning deliberations. If you have any control whatsoever on the pace of the trial, the best strategy is for closing arguments to wrap up close to lunch on a Friday. Given the choice between holding firm for the plaintiff and coming back to deliberate on Monday or agreeing to a defense verdict and getting home at a reasonable time on a Friday, a follower juror almost always picks Friday happy hour. If all goes in your favor, you and your clients can enjoy a post-verdict celebration as well.

Feature Article Circuit Judge Donald J. O’Brien, Jr. (Ret.) Circuit Court of Cook County, Illinois Charles P. Rantis Johnson & Bell, Ltd., Chicago

Seat Belt Evidence Inadmissible? Not So Fast. In automobile accident cases, issues always arise as to whether the plaintiff was using a seat belt. Because of the Illinois Supreme Court opinion in Clarkson v. Wright, 108 Ill. 2d 129 (1985), and section 12-603.1 of the Illinois Vehicle Code, 625 ILCS 5/12-603.1, most practitioners—both plaintiff and defense—believe that seat belt evidence is inadmissible. This belief is untrue, as will be demonstrated herein. Statutory Provision Against Evidence of Seat Belt Nonuse is Limited to Contributory Negligence and Mitigation of Damages The Illinois Supreme Court held in Clarkson v. Wright, that evidence of failure to wear a seat belt should not be admitted with respect to either the question of liability or damages. The Illinois General Assembly codified the rule in Clarkson in the Illinois Vehicle Code, 625 ILCS 5/12-603.1. Subsection (c) of the “seat belt statute” provides as follows: Sec. 12-603.1. Driver and passenger required to use safety belts, exceptions and penalty (c) Failure to wear a seat safety belt in violation of this Section shall not be considered evidence of negligence, shall not limit the liability of an insurer, and shall not diminish any recovery for damages arising out of the

ownership, maintenance, or operation of a motor vehicle. 625 ILCS 5/12-603.1(c) (emphasis added). Indeed, the Illinois appellate court and the Court of Appeals, Seventh Circuit have clarified the scope of the statutory prohibition against evidence of failure to wear a seat belt. In Bachman v. General Motors Corp., 332 Ill. App. 3d 760 (4th Dist. 2002), the Illinois Appellate Court, Fourth District, stated that section 12-603.1(c) does not preclude all seat belt evidence, but only evidence of nonuse in determining whether the person was negligent in failing to utilize the vehicle’s seat belt system. Bachman, 332 Ill. App. 3d at 799. Clearly, the Illinois seat belt statute prohibits a defendant from introducing evidence that a plaintiff was contributorily negligent in failing to wear a seat belt. DePaepe v. General Motors Corp., 33 F. 2d 737, 746 (7th Cir. 1994). Contributory negligence is conduct by the plaintiff that brings about the original injury; whereas, mitigation of damages involves the plaintiff’s actions in minimizing the harm after the original injury. See Grothen v. Marshall Field & Co., 253 Ill. App. 3d 122, 127-128 (1st Dist. 1993); Brady v. McNamara, 311 Ill. App. 3d 542, 547 (1st Dist. 2000). Indeed, the duty to mitigate only arises after the defendant’s tortious conduct inflicted an injury on the plaintiff. Brady, 311 Ill. App. 3d at 550. In other words, the time sequence is an important factor

in distinguishing contributory negligence from mitigation of damages. Mitigation of damages arises only after the original injury. There is no question that the Illinois seat belt statute is directed to the contention that a plaintiff was negligent in failing to utilize a vehicle’s restraint system. DePaepe, 33 F.3d at 746. Seat belt evidence is admissible so long as the use of such evidence is not for either contributory negligence or mitigation of damages. See, e.g., Walsh v. Emergency One, Inc., 26 F.3d 1417, 1420 (7th Cir. 1994) (seat belt evidence going to defect issue not assigned as error as the plaintiff conceded that the manufacturer could present this evidence to try to persuade — Continued on next page

About the Authors Judge Donald J. O’Brien, Jr., graduated from Northwestern University School of Law, 1963. Judge O’Brien was a principal in the firm of O’Brien, Redding and Hyde for 27 years. He has 27 years of experience as a trial lawyer, including arguing and trying cases in both the state and federal courts and the appellate level in both the state and federal courts. Appointed Cook County Circuit Court Judge, 1990; assigned in 1991 to Law Division hearing major personal injury cases and contract disputes. Elected to Cook County Circuit Court for full six-year term in November 1992. As an active trial lawyer, Judge O’Brien tried 107 cases to verdict. As a Presiding Judge, he presided over approximately 320 cases that went to verdict before a jury. Charles P. Rantis is a shareholder at Johnson & Bell, Ltd. where he specializes in product liability, construction negligence, and other personal injury and wrongful death cases.

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Feature Article | continued

the jury that because the truck had seat belts in the enclosed area, the truck was not unreasonably dangerous); Oakes v. General Motors Corp., 257 Ill. App. 3d 10, 19 (1st Dist. 1993); appeal denied, 155 Ill. 2d 563 (1994) (seat belt evidence admitted in case involving allegedly defective seat back); Bachman, 332 Ill. App. 3d at 799 (evidence of seat belt use relevant for the limited purpose of establishing whether plaintiff was involved in a frontal or side impact collision). Clearly, neither the Clarkson case nor the seat belt statute prohibits admission of seat belt evidence on the issue of proximate cause. Seat Belt Evidence is Relevant and Admissible on the Issue of Proximate Cause A plaintiff’s conduct in failing to use a vehicle’s seat belt is relevant and admissible on the issue of proximate cause of the injury. In the Illinois Supreme Court case of Korando v. Uniroyal Goodrich Tire Co., 159 Ill. 2d 335 (1994), the plaintiff’s decedents were killed in a one-car motor vehicle accident after the tread and top belt of the right rear steel-belted radial tire separated from the bottom belt. Korando, 159 Ill. 2d at 338-39. The decedent’s automobile skidded and went off the roadway, where it collided with a tree, vaulted into the air, and landed upside-down in a creek. Plaintiff’s decedents died as a result of the injuries sustained in the accident. Id. at 339. The tire involved in the accident had three punctures that were repaired with patches and a plug. The beads of the tire had been damaged such that an inner tube was placed in the tire to ensure that the tire retained air. Id. The sole theory of recovery was strict liability in tort. The defendant tire

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manufacturer denied the plaintiff’s allegations and raised affirmative defenses based on misuse, assumption of the risk of injury, and the driver’s contributory negligence. Id. However, prior to trial, the defendant tire manufacturer withdrew its affirmative defenses. As such, the three affirmative defenses were not presented to the jury for consideration. Id. However, the tire manufacturer, through expert testimony, presented evidence of the driver’s speed, braking, and steering as the proximate cause of the accident. Korando, 159 Ill. 2d at 344. The Korando court held that evidence of plaintiff’s conduct is directly relevant to the issue of proximate cause. The Korando court concluded: We find that the conduct of a plaintiff or a third party is relevant to the issue of proximate cause in a strict products liability case. Although a plaintiff’s negligence is generally not an issue in a strict products liability case, evidence relating to the plaintiff conduct is admissible to establish a defendant’s theory of defense that the product was not the proximate cause of the plaintiff’s injuries. Id. at 345 (emphasis added). The Korando court stated that the evidence of the decedent driver’s speed, braking, steering, and the substantial alteration to the tire was relevant to the defendant’s denial of the plaintiff’s claim, and, therefore, properly admitted. Id. at 345-46. A plaintiff’s conduct in his failure to wear his vehicle’s seat belt system is relevant to demonstrate the natural and ordinary course of events that led to the plaintiff’s injuries. See IPI 15.01 [proximate cause - definition]. It is not necessary that the defendant establish

that the plaintiff’s conduct amounted to negligent conduct. McDonnell v. McPartlin, 192 Ill. 2d 505 (2000). Because neither Clarkson nor the Illinois seat belt statute prohibits the use of evidence of a failure to use a seat belt on the issue of proximate cause, and the evidence is being offered only on the issue of proximate cause, there is no need to plead the failure to use a seat belt as an affirmative defense. The Illinois Supreme Court in Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83 (1995), held that because the plaintiff bears the burden on proximate cause that any evidence that attacks proximate cause or seeks to nullify the defendant being a proximate cause is not an affirmative defense. See also McDonnell, supra. Leonardi, in essence, says it is not the burden of the defendant to plead lack of proximate cause, but it is the plaintiff’s burden to prove proximate cause. Leonardi, 168 Ill. 2d at 93-94. The issue then becomes: How do you raise an issue of fact as to the failure to use a seat belt as a proximate cause of plaintiff’s injuries? The testimony needed should come from either a physician or a biomechanical engineer; a biomedical engineer is preferable to a physician. As a defense attorney, you have to scrutinize the fact pattern to determine whether to assert the defense. You must keep in mind that in most cases the defense is only viable as to a portion of the injuries. Rarely will you find a fact pattern wherein the expert can opine that all of plaintiff’s injuries were caused by a failure to use a seat belt. The next issue is how you get the seat belt proximate cause defense before the jury. The issue gets before the jury via a jury instruction. Assuming you have raised a triable issue of fact, the giving of an instruction is warranted if it is supported by some evidence

Evidence and Practice Tips in the record, even if the evidence is unsubstantial. Leonardi, 168 Ill. 2d at 100-101; Heastie v. Roberts, 226 Ill. 2d at 515, 543 (2007). The appropriate instruction to be proffered is IPI 12.05. It reads: 12.05. Negligence-Intervention of Outside Agency If you decide that a [the] defendant[s] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury. [However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.] IPI 12.05 is appropriate when you are claiming a condition; in this case, lack of seat belt use, other than the conduct of the defendant was the proximate cause of the injury. Roach v. Springfield Clinic, 223 Ill. App. 3d 597 (4th Dist. 1991); Krklus v. Stanley, 359 Ill. App. 3d 471(1st Dist. 2005). IPI 12.04 is not appropriate because 12.04 applies only where it is contended that the conduct of some person is the sole proximate cause. See Notes on Use, IPI 12.04. In other words, it is not proper for the court to give IPI 12.04 when the conduct at issue is the plaintiff’s.

Brad W. Keller Heyl, Royster, Voelker & Allen, P.C., Peoria

Fulfilling the Due Diligence Inquiry Requirement for Alternative Service In a recent case from the Illinois Appellate Court First District, Urban Partnership Bank v. Ragsdale, 2017 IL App (1st) 160773, the court examined the requirements for alternative service under Section 2-203.1 of the Illinois Code of Civil Procedure (735 ILCS 5/2203.1). The court ultimately reversed a default judgment entered in a foreclosure action because the plaintiff failed to meet the requirements set forth in Section 2-203.1. The decision provides useful advice to defense practitioners who find themselves either challenging service as improper or attempting to use alternative service to serve third party defendants that may be difficult to locate. Background Facts and Circuit Court Decision The underlying case in Urban Partnership involved a mortgage foreclosure action to recover residential property (the mortgaged property) owned by the defendant and her husband that was filed after they defaulted on a loan. Urban Partnership, 2017 IL App (1st) 160773, ¶ 7. The plaintiff filed suit on May 30, 2012, and summonses were issued for the defendant and her husband with the mortgaged property listed as their address. Id. After filing suit, the plaintiff hired ATG LegalServe (ATG) to serve the defendant and her husband. ATG first attempted service at the site of the mortgaged property on June 20, 2012.

Id. ¶ 8. Paul Marik, the ATG employee attempting service, noticed movement inside the building, but no one answered the door. Id. Marik left his business card and then attempted service again on June 26, 2012. On this occasion, someone inside the garage opened it slightly, but would not respond to his presence or shouts. The individual in the garage then shut the door. Id. Marik next attempted service on June 30, 2012. No one answered the door on this occasion and no one appeared to be inside. Id. ¶ 9. A fourth attempt at service was made by Marik on July 3, 2012, with no response received. Id. Christopher Gornik, another employee of ATG, attempted service on August 29, 2012. On that date, Gornik observed that the property at issue was vacant. Urban Partnership, 2017 IL App (1st) 160773, ¶ 9. The plaintiff then filed a motion for alternative service pursuant to Section — Continued on next page

About the Author Brad W. Keller is an associate in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He concentrates his practice on civil litigation defense in the areas of trucking/transportation, casualty, and commercial litigation. He received his B.A. in Political Science from the University of Illinois in 2007 and his J.D. magna cum laude from University of Illinois College of Law in 2010.

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Evidence and Practice Tips | continued

2-203.1 on November 28, 2012. Id. ¶ 10. The motion for alternative service included three affidavits from ATG: (1) the affidavit of Paul Marik, who attempted service on the first four occasions; (2) the affidavit of Christopher Gornik, who tried to serve defendant on the fifth attempt; and (3) a due diligence affidavit from Nicole Hoffman, another ATG employee. Id. Hoffman’s due diligence affidavit detailed the five attempts at service by Marik and Gornik and then indicated that ATG “[knew] of no other address, location or avenue of discovery to pursue at this time to successfully execute service upon [the defendant and her husband].” Id. ¶ 21. Despite filing a motion for alternative service, the plaintiff continued to attempt service, hiring E.L. Johnson Investigations (E.L.) to do so. Id. ¶ 11. On December 2, 2012, a representative of E.L. served the defendant’s husband at a Burr Ridge, Illinois address. Id. E.L. attempted to serve the defendant at the mortgaged property on six occasions between December 3, 2012 and December 13, 2012. E.L. conducted a due diligence search of public records to discover a different address for the defendant on December 17, 2012, but the results identified the mortgaged property as her last known address. Urban Partnership, 2017 IL App (1st) 160773, ¶ 11. On February 13, 2013, the circuit court granted the motion for alternative service, ruling that the plaintiff should serve the defendant and her husband by posting the summons and complaint at the property at issue and sending both by regular and certified mail. Id. ¶ 12. This was done on May 1, 2014. On July 31, 2014, the court entered judgment in favor of the plaintiff. Id. Attached to the plaintiff’s Motion for Default was an affidavit of an E.L. representative 46 | IDC QUARTERLY | Third Quarter 2017

In considering the appeal, the First District recognized that service of process is an essential part of litigation that provides the court with personal jurisdiction over the parties involved, which is necessary to enter a valid judgment.

that detailed the plaintiff’s attempts to perform a diligent search and inquiry of the defendant’s location. Id. ¶ 23. The mortgaged property was sold at judicial sale on November 3, 2014, with the sale confirmed by the circuit court on February 9, 2015. Id. ¶ 12. Thereafter, the defendant filed a Section 2-1401 petition on June 30, 2015, seeking to quash service and vacate the default and default judgment entered against her. The defendant argued that she could have been found at the Burr Ridge address at which her husband was served beginning in February 2012. The Section 2-1401 petition was denied on March 9, 2016, leading to this appeal. Urban Partnership, 2017 IL App (1st) 160773, ¶ 13. Appellate Court Decision On appeal, the defendant argued that the circuit court erred in denying the Section 2-1401 petition. She argued that the circuit court did not have personal jurisdiction over her because she was not properly served, and that the statutory requirements permitting alternative service were not met. Id. ¶ 15. She asserted that the judgment entered against her was therefore void. Id. ¶ 15 In considering the appeal, the First District recognized that service of process is an essential part of litigation

that provides the court with personal jurisdiction over the parties involved, which is necessary to enter a valid judgment. The court explained that a judgment rendered without personal jurisdiction is void even if the defendant had actual knowledge of the proceedings (which was important in this case given that the defendant’s husband had been served). Id. ¶ 18. The court then reviewed the requirements of service and alternative service. As defense practitioners are all aware, 735 ILCS 5/2-203 allows for service of a summons by leaving a copy with the defendant personally, or by leaving a copy at the defendant’s place of abode with a family member or person 13 or older that resides at the residence, along with mailing a copy of the summons to that address. Alternative service is allowed under 735 ILCS 5/2-203.1 if traditional service is impractical, but certain requirements must be met. Specifically, the motion for alternative service must include an affidavit that states the type of investigation conducted to determine the defendant’s location and why traditional service is impractical. 735 ILCS 5/2-203.1. The affidavit must include “a specific statement showing that a diligent inquiry as to the location of the individual defendant was made and reasonable efforts to make service have been unsuccessful.” Id.

In this case, the defendant argued that the due diligence affidavit provided by the plaintiff failed to include facts showing that the plaintiff, through its agents, performed a due diligence inquiry to determine an alternative address (other than the mortgaged property) at which to serve her. Urban Partnership, 2017 IL App (1st) 160773, ¶ 19. The defendant explained that she moved to the Burr Ridge address at which her husband was served in January 2012 and that a due diligence inquiry could have identified that address as her location beginning in February 2012. Id. Upon review of the due diligence affidavit submitted by Hoffman, the first district found it failed to include information detailing an attempt to determine where the defendant may have been living after finding the mortgaged property vacant. Id. ¶ 20. The court explained that while there are no magic words that must be stated in an affidavit in support of a section 2-203.1 motion, the affidavit must set forth facts demonstrating a diligent inquiry as to the location of the defendant. Id. The court further stated that due diligence requires honest and well-directed efforts to determine the location of a defendant. Id. Because the ATG due diligence affidavit executed by Hoffman did not identify any well-directed efforts to determine an alternative location for the defendant, the court found that the affidavit was fatally flawed. Id. The court further explained that while Hoffman’s affidavit detailed the attempts at service at the address of the mortgaged property and stated that ATG knew of no other address, location, or avenue of discovery to pursue to execute service on the defendant, it did not state what investigation was done to determine a current address for the defendant. Urban

Partnership, 2017 IL App (1st) 160773, ¶¶ 20-21. In finding that the defendant was not properly served, the court also relied on the fact that the defendant’s husband was served at the Burr Ridge address on December 2, 2012, well before default was entered against the defendant on July 31, 2014. The court seemed particularly puzzled by how the plaintiff had not made any attempts to serve the defendant at the Burr Ridge address subsequent to her husband being served there. Id. ¶ 22. Finally, the court also rejected the plaintiff’s argument that the due diligence affidavit of the E.L. employee that was attached to the motion for default filed on July 31, 2014 fulfilled the due diligence inquiry requirement. The court empha-

the default and default judgment, and remanded the case. Id. ¶ 25. Conclusion Service of process is an often overlooked aspect of litigation, despite its critical importance. Service is often seen as routine given that most defendants are easily served. Defense practitioners that find themselves wanting either to challenge alternative service or to utilize it in serving an absent third party defendant should review Urban Partnership Bank v. Ragsdale prior to filing a motion for alternative service that includes a due diligence affidavit. Ensuring that the requirements of Section 2-203.1 have been met is crucial in determining if alternative service is proper. A thorough

Service of process is an often overlooked aspect of litigation, despite its critical importance. Service is often seen as routine given that most defendants are easily served.

sized that this affidavit was not part of the motion for alternative service filed on November 28, 2012, and therefore, it could not be considered in the appeal of the circuit court’s ruling on the motion for alternative service. Id. ¶ 23. Given that the plaintiff failed to comply with the due diligence inquiry requirement found in Section 2-203.1, the first district found that service on the defendant had been improper. On this basis, the circuit court lacked the personal jurisdiction over her necessary to enter a default and default judgment against her. The court therefore vacated

understanding of the section’s requirements may make the difference in either being a hero for your client or finding yourself in a difficult situation months or years down the road.

Third Quarter 2017 | IDC QUARTERLY | 47

Civil Practice and Procedure Donald Patrick Eckler Pretzel & Stouffer, Chartered, Chicago

viii.

Michael P. Sever Foran Glennon Palandech Ponzi & Rudloff, P.C., Chicago

Justice Delayed is Justice Denied: The Northern District of Illinois’ Mandatory Initial Discovery Pilot Program Chief Justice Roberts, like many in the legal profession, has expressed an interest in exploring ways to reduce the time and cost associated with litigation. However, unlike the common practitioner, when the Chief Justice of the United States Supreme Court takes specific interest in a legal topic, members of the bar are wise to take notice, as changes affecting the practice of law are likely to follow. This is especially true when that interest manifests as a pilot program in one of the busiest districts in the federal court system. Esoteric high court policy considerations quickly become the trial court’s practical reality. The United States District Court for the Northern District of Illinois is embracing Chief Justice Roberts’ vision by participating in a Mandatory Initial Discovery Pilot Program (MIDP). See http://www.ilnd.uscourts.gov/Pages. aspx?jYyawIFLXKMJrmXzxFk8lw==. The MIDP builds on the initial disclosure requirements already present in Federal Rule of Civil Procedure 26(a)(1). This article explores the backstory and rationale behind MIDP and practical considerations as the program gets underway.

District Court for the Northern District of Illinois will be subject to MIDP. Exceptions to MIDP’s otherwise universal application will be made for patent cases, actions under the Private Securities Litigation Reform Act, cases transferred for consolidation by the Judicial Panel on Multidistrict Litigation, and proceedings which are otherwise exempt from initial disclosure requirements under Federal Rule of Civil Procedure 26(a)(1)(B). Those Rule 26 exempted cases are: i. ii.

iii.

iv.

v.

vi.

Overview Effective June 1, 2017, almost all new complaints filed in the United States 48 | IDC QUARTERLY | Third Quarter 2017

vii.

Actions for review on an administrative record; Forfeiture actions in rem which arise from a federal statute; Petitions for habeas corpus or any other proceedings utilized to challenge a criminal conviction or sentence; Pro se actions brought by persons in the custody of the United States, a state, or a state subdivision (e.g., prisoners); Actions to enforce or quash an administrative summons or subpoena; Actions by the United States to recover benefit payments; Actions by the United States to collect on a student loan guaranteed by the United States;

ix.

Proceedings ancillary to a proceeding in another court; and Actions to enforce an arbitration award.

Fed. R. Civ. P. 26(a)(1)(B). Other details of the MIDP program will be explored further, infra. However, what is perhaps most important for at-

About the Authors Donald Patrick Eckler is a partner at Pretzel & Stouffer, Chartered, handling a wide variety of civil disputes in state and federal courts across Illinois and Indiana. His practice has evolved from primarily representing insurers in coverage disputes to managing complex litigation in which he represents a wide range of professionals, businesses and tort defendants. In addition to representing doctors and lawyers, Mr. Eckler represents architects, engineers, appraisers, accountants, mortgage brokers, insurance brokers, surveyors and many other professionals in malpractice claims. Michael P. Sever is an associate attorney at Foran Glennon Palandech Ponzi & Rudloff, P.C., where he concentrates his practice in commercial litigation, construction litigation, casualty litigation, subrogation, products liability, and professional liability defense. Mr. Sever has represented companies and design professionals in cases involving construction negligence, contract enforcement, trucking accidents, premises liability, and personal injury defense. Mr. Sever also represents the world’s largest collector car auction in a variety of matters, including dispute resolution, contract enforcement, litigation, and trademark registration. Mr. Sever earned his B.A. from Marquette University in 2006 and his J.D. from Saint Louis University School of Law in 2010. He is admitted to practice in the state courts of Illinois and Wisconsin, as well as the United States District Courts for the Northern District of Illinois, and the Eastern District of Wisconsin.

torneys to know is that nearly every judge in the Northern District of Illinois will be participating in the pilot program, including all magistrate judges in the Eastern Division. At a MIDP workshop in late May 2017, attorneys were warned that only a few judges in the entire District are abstaining. As it is unclear which judges are not participating in the pilot program, counsel should review the assigned judge’s standing order or contact their deputy to determine whether a case will be subject to MIDP. History and Rationale A similar MIDP program is already under way in the United States District Court for the District of Arizona. At a recent MIDP workshop hosted by the Northern District of Illinois, it was noted that a survey found that prior to MIDP’s recent implementation in Arizona, practitioners preferred litigating in Arizona state court rather than in Arizona’s federal district court by a two-to-one margin. This preference was largely attributed to the Arizona state courts’ utilization of mandatory initial discovery. Neighboring states Utah and Colorado have similar MIDP procedural requirements in their state courts. Contrast that with Illinois state courts which have no such requirement. Judges in the Motion Section of the Law Division of the Circuit Court of Cook County often require an initial list of treaters to be provided to defendants, but that is the extent of any initial discovery requirements. The Northern District of Illinois is only the second federal jurisdiction to adopt the MIDP pilot program. Information gathered from Arizona, Illinois, and any other jurisdictions which adopt MIDP protocols will be used to determine whether the pilot program should be per-

manently codified in the Federal Rules of Civil Procedure. As seen with Illinois’ adoption of rules expanding discovery requirements to tackle issues related to electronic discovery, if such rules are adopted at the federal level, practitioners can expect that some iteration of MIDP is likely to be implemented in Illinois state courts. The MIDP program’s stated goal is to reduce litigation time and its attendant discovery costs by encouraging a more active role for federal judges at the outset of litigation. However, involvement can only be achieved if the parties have a similar level of active engagement. This would seem a far more precise manner to effectuate such a goal than the patently unfair, and now largely abandoned, effort to require simultaneous expert disclosures in Circuit Court of Cook County. Instead, and as discussed further below, MIDP uses the blunt instrument of requiring answers to complaints and the robust initial disclosures, even in situations in which the defendant has moved to dismiss the complaint under Rule 12(b)(6). Comparing Mandatory Initial Discovery with Rule 26(a)(1) Disclosures At its core, MIDP is, quite simply “Court-Ordered Discovery.” If this sounds familiar, the court concedes that there is significant overlap between MIDP and Rule 26(a)(1) disclosures with which federal court practitioners are already familiar. However, not only does MIDP supersede the already-existing disclosure demands of Rule 26(a), but MIDP has several key differences. The MIDP pilot program will be administered by General Order No. 17-0005, which directs the Clerk of Court to enter the MIDP Standing Order in all applicable

civil assigned to judges participating in the MIDP pilot program. The most significant difference between Rule 26 and the MIDP pilot program is in its scope. While Rule 26 only requires disclosure of documents and witnesses “that the disclosing party may use to support its claims or defenses,” MIDP requires disclosure of all documents and witnesses “likely to have discoverable information relevant to any party’s claims or defenses.” Standing Order Regarding Mandatory Initial Discovery Pilot Project, at ¶ B(1), available at http://www.ilnd.uscourts. gov/_assets/_documents/MIDP%20 Standing%20Order.pdf (MIDP Standing Order) (emphasis added). The MIDP’s mandate means that parties must put their cards on the table and disclose that knowledge—regardless of how adverse it may be. Another notable difference between MIDP and Rule 26 is its consistent enforcement. Unlike Rule 26, parties are not allowed to “opt out” of MIDP by stipulation. See Fed. R. Civ. P. 26(a) (1)(A); MIDP Standing Order, at p. 1. Allowing parties to opt out of the pilot program would undercut not only the pilot program’s policy aims, but would also compromise the reliability of the collected data. Despite the existence of the MIDP Standing Order, judges will continue to exercise their own discretion as circumstances require. Attorneys should be cautioned that while judges will not enforce MIDP “unreasonably,” the pilot program will be enforced “rigorously.” Required Disclosures Under MIDP, parties must now disclose the following information without — Continued on next page

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Civil Practice and Procedure | continued

awaiting a formal discovery request from the other party: i.

ii.

iii.

iv.

v.

vi.

Names, addresses, and telephone numbers of all witnesses believed to likely have discoverable information relevant to any party’s claims or defenses; Names, addresses, and telephone numbers of all persons who have given written or recorded statements, unless statement is subject to work product protection or privilege; Documents, ESI, etc. that the party knows to exist, which may be relevant to any party’s claims or defenses; A statement of facts relevant to each claim or defense the party intends to advance, and the legal theories upon which each claim or defense is based; Computation of each category of damages claimed by the party, along with a description of the evidentiary support for the calculation; and Specific identification of any insurance or other agreement under which an insurance business or other entity may be liable to satisfy all or part of a judgment.

MIDP Standing Order, at ¶ B(1)-(7) (emphasis added). Some of these requirements create a set of problems that will need to be addressed. There are likely to be disputes over which documents are relevant to the other side’s claims or defenses and the failure to produce documents that the opposing side believes are relevant will likely be a frequently-encountered issue. 50 | IDC QUARTERLY | Third Quarter 2017

If a party believes that the MIDP disclosures are deficient or incomplete, parties may request a more detailed or thorough response from a disclosing party. Accordingly, parties should make disclosures with an eye towards providing sufficient detail so as to avoid unnecessary work, or an uncomfortable court hearing.

In addition, the sufficiency of, and what exactly constitutes, “the facts relevant to a claim/defense and the legal theories upon which it is based” is likely to be subject to frequent motion practice. This MIDP requirement is essentially a contention interrogatory on every party at the outset of the case. It has often been held that for the purposes of judicial economy and party convenience (the very reasons the MIDP is being implemented) contention interrogatories are best delayed to the end of discovery. Edward Lowe Indus. v. Oil-Dri Corp. of Am., 94 C 7568, 1995 WL 399712, at *3 (N.D. Ill. July 11, 1995) (citing Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 111 (D.N.J. 1990)). This argument may fall on deaf ears under the MIDP, which will likely benefit defendants. From a purely procedural perspective, the actual documents being disclosed do not need to be filed with the court; just the parties. MIDP Standing Order, at ¶ A(5). A certificate of service is sufficient for the court’s purposes. Hard copy documents must be produced as they are kept in the usual course of business. When ESI is disclosed or discovered, parties must promptly confer and attempt to agree on matters relating to the ESI’s disclosure and production. Id. at ¶

C(2). If the parties are unable to resolve any dispute regarding ESI production, the parties must present the dispute to the court in a single joint motion, or, if the court directs, in a conference call. Id. at ¶ C(2)(b). If a party believes that the MIDP disclosures are deficient or incomplete, parties may request a more detailed or thorough response from a disclosing party. Accordingly, parties should make disclosures with an eye towards providing sufficient detail so as to avoid unnecessary work, or an uncomfortable court hearing. Timeline for Disclosures Disclosures under the MIDP program (as may be expected), are temporally tied to the parties’ respective pleadings. A party seeking affirmative relief must serve its MIDP no later than 30 days after the first pleading filed in response to its complaint, counterclaim, crossclaim, or third-party complaint. Id. at ¶ A(4). A party filing a responsive pleading, regardless of whether it seeks affirmative relief, must serve its MIDP no later than 30 days after it files its responsive pleading. Id. The swiftness of this requirement should be kept in mind particularly in removal cases, as the responsive pleading is due 7 days

after removal, which would make the initial disclosures under the MIDP due 37 days after removal. See Fed. R. Civ. P. 81(c)(2)(C). Nothing in the MIDP program alters the responsive pleading deadlines in Rule 12(a)(1-3). However, the court may defer the responsive pleading deadlines for good cause if a party files a motion to dismiss based on lack of personal jurisdiction, subject matter jurisdiction, or a motion to dismiss premised upon sovereign immunity, absolute immunity, or qualified immunity of a public official. MIDP Standing Order, at ¶ A(3). One of the most important changes imposed by the MIDP is that even in cases in which a defendant has filed a Rule 12(b)(6) motion, the defendant must still answer the complaint. This is a sea change. The parties are ordered to provide MIDP before initiating any further discovery in the case. Id. at ¶ A(1)(a). Parties still have the ability to propound their own discovery under Federal Rules 33 through 36. However, the goal is that by providing an early accounting of all available evidence, any additional discovery can be more targeted than current discovery practice of requesting “any and all” documents. Further discovery will proceed under the auspices of the Federal Rules of Civil Procedure, and the court’s case management order, as usual. Parties should be prepared to discuss their MIDP responses with the court at the case management conference. Accordingly, parties are to include a description of their discussions of the MIDP responses in their 26(f) report to the court. A party is not excused from providing its response because it is “still investigating,” because a party is challenging the sufficiency of another party’s response, or if another party has

not provided a response. Id. at ¶ A(1) (b). Unless ordered otherwise, ESI must be produced within 40 days of serving the producing party’s initial response. Id. at ¶ C(2)(c). There is, of course, a continuing duty to supplement. Id. at ¶ A(6). Supplemental disclosures must be made within 30 days of the information/ document’s discovery. Proportionality is also a concern— the MIDP program’s goal is to reduce the cost of litigation. Thus, there is no reason to produce volumes upon volumes of documents in a dispute with relatively modest damages. It remains to be seen how long the pilot program will proceed before final decisions are made regarding its potential impact on the Federal Rules of Civil Procedure. In the meantime, attorneys should be aware of MIDP and consider its potential impact on each case they file, defend, or remove. Tips for Practitioners For defendants, the most important change effectuated by the MIDP is that, irrespective of the filing of a motion to dismiss under Rule 12(b)(6), the defendant must answer the complaint and comply with the mandatory initial disclosure requirements. Defendants will be required to provide documents, facts, and legal theories to plaintiffs while motions to dismiss are pending. In certain circumstances, this could provide the plaintiff with a roadmap to responding to the motion or amending the complaint. Under the current Rules, motions to dismiss are ruled upon and, if denied, the parties then proceed to conduct discovery, beginning with initial disclosures. Under the MIDP, motions to dismiss and discovery proceed simultaneously.

The application of the MIDP will likely increase the early costs of litigating in federal court. As the documents requested and information required to be provided would ultimately be provided in the course of discovery under the current rules, the MIDP is not likely to increase the overall cost of litigation. It also likely that there will be some variance in how the MIDP is applied by individual judges, so attention should be paid to how each judge is handling particular requirements and to review any changes in standing orders to deal with any new requirements. Those that regularly practice in federal court should advise their clients of the MIDP prior to initiating or removing litigation so that their clients are prepared when counsel makes early requests for extensive discovery. Timing of removal in particular should be carefully calculated to prepare for a shortened period of initial significant disclosure, especially in cases in which ESI is expected. As the timing for production of the initial documents is so short, the additional time provided by waivers of service becomes more valuable than ever and should be seriously considered in almost every case except those where it is believed that the plaintiff will have a very difficult time serving the defendant. As we do not have information from the Arizona pilot project, how the MIDP will affect individual cases and classes of cases is hard to divine at this point. However, what is clear is that under the MIDP, counsel and their clients will have to be focused on production of documents and answers to contention interrogatories from the very outset of the case.

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Feature Article Jason E. DeVore* DeVore Radunsky LLC, Chicago

Public Policy and the Art of Drafting Conforming Insurance Policies When thinking about an insurance policy, the term “art” may not spring to mind. However, given the importance of insurance, coupled with the numerous considerations underpinning policy language, artful drafting is essential. This is not say that policies should be considered works of art. Instead, it is meant to highlight the need to articulate coverages and limitations in a clear, unambiguous, and fair manner regardless of the type of policy at issue. Insurers interpose conditions precedent to coverage to limit exposure in a variety of scenarios. For example, providing notice of potential claims within a specified period is one such condition precedent. Illinois courts routinely enforce valid notice provisions to negate coverage. Yet, insurers seeking to limit coverage must be mindful to conform with public policy codified in Illinois statutes. Failure to conform with public policy considerations can be a death knell to an otherwise straightforward provision. This article touches on drafting requirements necessary to comply with Illinois law and public policy considerations, as established by a welldeveloped body of case law. Specifically, this article highlights the manner that courts evaluate actions of insurers and insurance producers to determine whether they pass muster. Clarity and Ambiguity The rules for construction of an insurance policy are well established. 52 | IDC QUARTERLY | Third Quarter 2017

An insurance policy is a contract and is subject to the general rules governing contracted station. Progressive Premier Ins. Co. v. Cannon, 382 Ill. App. 3d 526 (3d Dist. 2008). A court’s primary objectives in construing the language of an insurance policy are: “to ascertain and give effect to the intentions of the parties as expressed by the language of the policy,” and to give the policy’s words their plain and ordinary meaning. Valley Forge Ins. Co. v. Swiderski Elec., Inc., 223 Ill. 2d 352, 362-363 (2006). Where the policy is clear and unambiguous, the job is easy. Courts will apply clear, unambiguous provisions as written to exclude or limit available coverage. Cent. Ill. Light Co. v. Home Ins. Co., 213 Ill. 2d 141, 153 (2004). If the words in the policy are susceptible to more than one reasonable interpretation, however, the court must consider them ambiguous and construe the language strictly against the insurer that drafted the policy and in favor of the insured. Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill. 2d 90, 108 (1992). This maxim exists because there is little or no bargaining involved in the insurance contracting process, the insurer has control of the drafting process, and the policy’s purpose is to provide coverage to the insured. Pekin Ins. Co. v. Equilon Enter. LLC, 2012 IL App (1st) 111529, ¶ 19. To be sure, a contract is not rendered ambiguous just because the parties disagree on its meaning. Cent. Ill. Light, 213 Ill. 2d at 153. Additionally, courts are cautious not to distort the language of an

insurance policy to create an ambiguity where none exists. Dixon Distrib. Co. v. Hanover Ins. Co., 161 Ill. 2d 433, 441 (1994). Further, failure to define a particular policy term does not render that term ambiguous, nor is it ambiguous simply because the parties can suggest creative possibilities for its meaning. Smith v. Neumann, 289 Ill. App. 3d 1056, 1064 (2d Dist. 1997). Moreover, courts must assume that every provision within the insurance policy was intended to serve a purpose. Founders Ins. Co. v. Munoz, 237 Ill. 2d 424, 433 (2010). Accordingly, the court must look at the policy as a whole, instead of reading terms in isolation, to determine whether an ambiguity exists. These principles are intended to provide a level playing field for insurers and insureds. Based upon the foregoing principles, it may seem that determining the applicability of various insurance

About the Authors Jason E. DeVore is a founding member of DeVore Radunsky LLC. He concentrates his practice on representing and advising insurance carriers regarding insurance coverage disputes. Additionally, Mr. DeVore counsels businesses and individuals to address risk management policy issues, including resolving disputes with insurers. Prior to becoming an attorney, Mr. DeVore underwrote policies and audited claims processes for an insurance carrier that issued policies throughout the United States. He obtained his J.D. from IIT, Chicago-Kent College of Law and graduated from Central College in Pella, Iowa with a degree in Business Management. *Special thanks to Andrew Clott, a Law Clerk at DeVore Radunsky LLC and a third-year student at Loyola University Chicago School of Law. Andrew was instrumental to the research, drafting and editing of this article.

Where the policy is clear and unambiguous, the job is easy. Courts will apply clear, unambiguous provisions as written to exclude or limit available coverage. If the words in the policy are susceptible to more than one reasonable interpretation, however, the court must consider them ambiguous and construe the language strictly against the insurer that drafted the policy and in favor of the insured.

provisions should be relatively cut and dried. Not so. As the supreme court has ruled, parties to a contract may agree to any terms they choose unless their agreement is contrary to public policy. Sulser v. Country Mut. Ins. Co., 147 Ill. 2d 548, 559 (1992). As discussed below, public policy concerns often come into play when a court is deciding the fate of a particular claim. Limiting Insurance Restrictions with Public Policy Under Illinois law, generally, when an insurer attempts to place limits on provisions governed by statute, such as uninsured motorist provisions, the limitations must be construed in favor of the policyholder and strongly against the insurer. Public policy considerations underlying insurance contracts go beyond the simple contractual relationship between insurer and insured, and seek to afford protection to members of the public. Illinois courts have long recognized these types of public policy considerations underlying automobile insurance contracts. In Gothberg v. Nemerovski, 58 Ill. App. 2d 372 (1st Dist. 1965), the

appellate court noted that automobile insurance policies have unique “connotations extending to the general public above and beyond the private interests of the two contracting parties” and concluded that “[a]utomobile insurance . . . is no longer a private contract merely between two parties.” Gothberg, 58 Ill. App. 2d at 386. In light of the goal of protecting the general public in insurance matters, public policy considerations are not confined to the narrow scope of automobile policies. For example, Illinois courts recognize that an injured third party is deemed to have an interest in the adjudication of a coverage dispute between the insured and the insurance company. Reagor v. Travelers Ins. Co., 92 Ill. App. 3d 99 (1st Dist. 1980). The Reagor court explained that “liability insurance abounds with public policy considerations” and, therefore, “injured members of the general public are beneficiaries of liability insurance policies.” Reagor, 92 Ill. 2d at 102-103. Hence, those whose rights would be impacted by the resolution of an insurance coverage dispute in a declaratory action are generally deemed “necessary parties” to the action. See 735 ILCS 5/2-701,

Safeco Ins. Co. of Ill. v. Treinis, 238 Ill. App. 3d 541 (1st Dist. 1992) (joinder may be excused if it is not feasible to join the party). The courts’ reasoning in Gothberg and Reagor has factored into recent cases that have seen courts attempt to clarify circumstances in which a duty is owed by insurance producers. In Skaperdas v. Country Casualty Insurance Co., 2015 IL 117021, the Illinois Supreme Court held that a fiduciary or agency relationship between the insurance producer and the insured is not required to establish “a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act.” Skaperdas, 2015 IL 117021, ¶ 25. Further, the Skaperdas court recognized that “such a duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons.” Id. Thus, if an insurance producer’s action in choosing a policy creates a foreseeable risk of injury, the defendant has a duty to protect others from that injury. Id. Following Skaperdas, the Northern District of Illinois held that the insurance producer for an ice hockey league owed a duty to exercise ordinary care towards a player who was injured during a league game. Moje v. Federal Hockey League LLC, 207 F. Supp. 3d 833 (N.D. Ill. 2016). The Moje court opined that an insurance producer’s duty to supply adequate liability coverage to the insured tortfeasor extended to the injured plaintiff because this case—involving a personal injury tort claim—bore “a closer relationship to the long line of Illinois cases placing a duty on an insurance producer in automobile accident cases.” Moje, 207 F. Supp. 3d at 840. — Continued on next page

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In contrast, the Illinois Appellate Court, First District found no such parallel between business tort claims and automobile claims in Central Mutual Insurance Co. v. Tracy’s Treasures, Inc., 2014 IL App (1st) 123339. In Tracy’s Treasures, the court found “no corresponding public policy requiring those who advertise their businesses through electronic transmissions to carry liability insurance to cover the possibility that those to whom the advertisements are transmitted have not consented to receive them.” Tracy’s Treasures, 2014 IL App (1st) 123339, ¶ 104. The Tracy’s Treasures court did opine, however, that such reasoning “could also be extended to cases involving professions subject to mandatory insurance requirements, such as doctors or lawyers.” Id. Limiting Enforcement of Notice Provisions with Public Policy Courts interpreting Illinois law have determined that a party must comply with conditions precedent to coverage to obtain coverage. If an insured fails to comply with a notice requirement, the insurer may deny coverage; prejudice to the insurer is not required. Northbrook Prop. & Cas. Ins. Co. v. Applied Systems, Inc., 313 Ill. App. 3d 457, 464 (1st Dist. 2000) (see also Allstate Ins. Co. v. Employers Reinsurance Corp., 441 F. Supp. 2d 865, 875 (N.D. Ill. 2005)). At first blush, this may appear to be unfairly one-sided in favor of the insurer. Yet, as many insurers have learned, application of the law to a particular provision is not as one-sided as it may appear. In a recently decided case, the court in Smith v. American Heartland Insurance Co., 2017 IL App (1st) 161144, considered a seemingly simple provision that required written notice within 54 | IDC QUARTERLY | Third Quarter 2017

120 days of an accident. There was no dispute that the insured failed to provide notice within the specified time frame. Additionally, the court agreed there was nothing ambiguous about the timing requirement because the notice provision clearly and unambiguously required notice within 120 days of the accident. American Heartland, 2017 Ill. App. (1st) 161144, ¶ 26. Moreover, the court likened the 120-day notice requirement to requirements in many policies mandating written notice “as soon as practicable,” which was interpreted by courts to mean “within a reasonable time.” Id. Yet, instead of ruling in favor of the insurer based upon the claimant’s admission that she failed to provide written notice within 120 days of the accident, the court continued its analysis. In deciding whether a provision within an insurance agreement violates public policy, the court advised that it “must determine whether the agreement is so capable of producing harm that its enforcement would be contrary to the public interest.” Id. at ¶ 28 (citing Phoenix Ins. Co. v. Rosen, 242 Ill. 2d 48, 54 (2009)). Pursuant to Illinois law, violation of public policy depends on the particular facts and circumstances of the case. Kleinwort Benson North America, Inc. v. Quantum Fin. Servs., Inc., 181 Ill. 2d 214, 226 (1998). Applying the general rule requiring construing in favor of the insured any attempts to limit uninsured motorist provisions, the court rejected the American Heartland 120-day notice provision. American Heartland, 2017 IL App (1st) 161144, at ¶ 29. Although the 120-day provision in the policy limited the time within which notification of the claim must be made, the uninsured motorist statute does not state a limit regarding when an uninsured motorist claim may

be brought. See 215 ILCS 5/143a (West 2014). Accordingly, the court relied on Severs v. Country Mutual Insurance. Co., 2017 IL App (1st) 161144, in concluding that uninsured motorist statutes “cannot be circumvented by the insertion of a contrary or restricting provision in an insurance policy.” American Heartland at ¶ 29 (citing Severs v. Country Mut. Ins. Co., 89 Ill. 2d 515, 520 (1982)). The American Heartland court employed the same rationale used in numerous cases interpreting the Illinois uninsured motorist statute, wherein an insurer sought to dilute or diminish the intent of the legislature. For example, in Coronet Insurance Co. v. Ferrill, 134 Ill. App. 3d 483, 484 (1st Dist. 1985), a provision in the auto policy required an insured to notify Coronet of an uninsured motorist claim within one year of the insolvency of the tortfeasor’s insurer.. Coronet rejected the policyholder’s uninsured motorist claim because the insured filed his claim more than one year after the tortfeasor’s insurer was declared insolvent. Ferrill, 134 Ill. App. 3d at 485. The court held that the challenged one-year notice provision, as applied, “impermissibly limits the time within which the policyholder may assert the insolvency of his opponent’s insurer to one year, whether the policyholder knows of it or not.” Id. at 487. The court found application of the discovery rule would give full, fair, and reasonable effect to the policy terms as written. Id. at 488. Under this rule, the notice period requirement would not begin to run until the claimant knew or, reasonably should have known, of the insolvency of the other motorist’s insurer. Id. Similarly, courts have deemed oneyear limitations periods for demanding arbitration violative of uninsured motorist claims. Burgo v. Illinois Farmers Ins. Co., 8 Ill. App. 3d 259, 264 (1st Dist.

Construction Law 1972). In Burgo, the uninsured motorist provision required the policyholder to demand arbitration within one year of the date of the accident. The court held that if the practical effect of the one-year limitation provision was to deny the insured the contracted uninsured motorist coverage required by statute, then the provision is void and without effect. Burgo, 8 Ill. App. 3d at 263. The court found that, in this situation, the insured would be defeated by the one-year provision without having the opportunity to invoke the coverage he had been paying for, because the insured plaintiff had no way of knowing the tortfeasor defendant would become an uninsured motorist. Id. Conversely, the Illinois Supreme Court has upheld two-year limitations periods for statutorily governed underinsured motorist claims. Country Preferred Ins. Co. v. Whitehead, 2012 IL 113365. In Whitehead, the Supreme Court ruled that the two-year period allowed the plaintiff “what our legislature has deemed a sufficient amount of time to ascertain the basis for, and dimensions of, her uninsured-motorist claim, and, if necessary, to take steps to initiate dispute resolution procedures.” Whitehead, 2012 IL 113365, ¶ 39. Conclusion Illinois courts have made it clear that insurance policies of many types must adhere not only to statutes, but to fundamental considerations of public policy and fairness. Courts have consistently looked beyond the express language of policies to the public policy underpinning the policies. Effective, artful drafting of policy provisions must reflect an understanding of not only the governing statutes, but the public policy considerations at play.

Lindsay Drecoll Brown and Steven A. Montalto Cassiday Schade LLP, Chicago

Minor Details: Childproofing Construction Sites after Farrell v. Farrell It has often been said that there are two seasons in Illinois: winter and construction. As soon as we pack away our snow shovels, there is a sudden increase in conspicuous orange pavement markings, flashing yellow lights, and the undeniable sounds of construction on residential and commercial properties. Just as warning signs and safety cones alert adults to avoid potentially hazardous work areas, those same items can inadvertently attract curious minors. That dichotomy can raise concerns for conscientious general contractors charged with timely completing their work while simultaneously protecting all members of the general public, regardless of age, from accidental injury onsite. A debate can arise regarding whether measures should be taken to “child-proof” the worksite. In Farrell v. Farrell, the appellate court issued a ruling that serves as a general reminder that landowners—and general contractors acting on their behalf—are, in fact, obligated to exercise reasonable care to protect minors from injury resulting from dangerous conditions on the premises. Farrell v. Farrell, 2016 IL App (3d) 160220. The Backdrop to Farrell Under Illinois law, a general contractor acting on a landowner’s behalf may be subject to liability in tort as if it were the landowner itself. O’Connell v. Turner Constr. Co., 409 Ill. App. 3d 819, 825 (1st Dist. 2011). It “is subject to the same liability, and enjoys the same freedom

from liability” as the property owner. Deibert v. Bauer Bros. Constr. Co., 188 Ill. App. 3d 108, 109 (5th Dist. 1989) (citing Restatement (Second) of Torts §383 (1965)). Since 1955, the Illinois Supreme Court has consistently found — Continued on next page

About the Authors Lindsay Drecoll Brown is a senior associate in the Chicago office of Cassiday Schade LLP. She concentrates her practice in civil litigation defense, with an emphasis on construction law, professional liability and product liability. Ms. Brown received her J.D., cum laude, from Loyola University Chicago School of Law, and her undergraduate degree from Michigan State University, with high honors. She is a member of the Illinois Association of Defense Trial Counsel’s Construction Law Committee. Steven Montalto is an associate at Cassiday Schade, LLP. He concentrates his practice in construction and general civil litigation defense. Mr. Montalto earned his J.D., magna cum laude, from Loyola University Chicago School of Law, where he served as editor-inchief of the Public Interest Law Reporter and in-house director of the Moot Court Program. During that time, Mr. Montalto was also named a member of the American Bar Association National Appellate Advocacy Team, a staff writer for the Annals of Health Law Advance Directive and president of Loyola’s Justinian Society of Lawyers. He is an inducted member of the Alpha Sigma Nu honor society. Mr. Montalto earned his B.A., cum laude, from Benedictine University in Lisle, Illinois and is admitted to practice in Illinois.

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Construction Law | continued

a landowner’s liability and, a general contractor’s liability pursuant to Deibert, to a minor injured upon the premises is analyzed under the customary rules of ordinary negligence. Kahn v. James Burton Co., 5 Ill. 2d 614, 624 (Ill. 1955); see also Qureshi v. Ahmed, 394 Ill. App. 3d 883, 886 (1st Dist. 2009). Under what is colloquially known as the Kahn Doctrine, an entity in possession of a premises that is “habitually” frequented by minors owes a duty to exercise reasonable care to fix any dangerous conditions or defective structures on their property that are likely to injure children due to their inability to appreciate the risk inherent to the dangerous condition or defective structure. Mt. Zion State Bank & Trust v. Consolidated Communications, 169 Ill. 2d 110, 117 (1995) (citing Kahn, 5 Ill. 2d at 625). Nonetheless, a duty will ultimately be imposed against the landowner or general contractor only where it is found that “the expense and inconvenience of remedying the defective structure or dangerous condition was slight” in comparison to the risk it presented to minors on the premises. Choate v. Ind. Harbor Belt R.R. Co., 2012 IL 112948, ¶ 28. Pursuant to the Kahn Doctrine, the foreseeability of harm to a child is the “cornerstone” of liability. Choate, 2012 IL 112948, ¶ 28. In light of Kahn and subsequent interpreting case law, Illinois is now in harmony with the Restatement (Second) of Torts § 339 as opposed to following the outdated “attractive nuisance” doctrine. Such harmonization obviates the need for practitioners to attempt to classify a minor’s status on land as invitee, licensee or trespasser. Choate, 2012 IL 112948, ¶ 28. A court’s willingness to impose liability will be tempered in consideration of the general proposition that the 56 | IDC QUARTERLY | Third Quarter 2017

responsibility to keep a child safe lies primarily in the hands of his or her parents. As such, it is the minor’s parents—as opposed to any general contractor or landowner—who owe a duty to see that the minor’s behavior does not result in injury, regardless of whether the minor is at home or traversing a construction site. Along those lines, the “obvious risk” exception to the Kahn Doctrine is often invoked by general contractors in the face of litigation brought on behalf of a minor injured on a construction site. Under the “obvious risk” exception, possessors of land are exempt from protecting minors from conditions that are deemed to be obviously dangerous or clear safety risks. Cope v. Doe, 102 Ill. 2d 278, 286 (1984). The logic behind this rule is that possessors of land should be able to trust that any minor that is old enough to be left roaming “at large” by his or her parents should similarly be old enough to recognize conditions that are inherently and obviously dangerous. Some examples of conditions that present risks so obvious that even children are expected to appreciate and avoid any associated dangers include falling from a significant height, fire and water. Stevens v. Riley, 219 Ill. App. 3d 823, 830 (2d Dist. 1991). The “obvious risk” exception applies regardless of whether the complained-of condition appeared on the premises naturally or was intentionally constructed. Lerma v. Rockford Blacktop Constr. Co., 247 Ill. App. 3d 567, 575 (2d Dist. 1993). As such, a general contractor is not required to take any measures to “child-proof” large areas of water accumulated on the jobsite, even if the water was intentionally pooled as the result of the contractor’s work such as would occur during or after the construction of a retention pond or dam. Lerma, 247 Ill.

App. 3d at 575; Cope, 102 Ill. 2d at 289; Mostafa v. City of Hickory Hills, 287 Ill. App. 3d 160 (1st Dist. 997). Similarly, a general contractor is not expected to find ways to prevent trespassing children from encountering the obvious danger of falling from or off structures onsite. Jakubowski v. Alden-Bennett Constr. Co., 327 Ill. App. 3d 627, 636 (1st Dist. 2002). However, no Illinois court has found that any particular type of construction itself presents such an obvious risk that liability for injuries incurred by minors onsite cannot lie against a general contractor. This is true despite certain decisions finding some construction work to be inherently dangerous. See, Cole v. City of East St. Louis, 158, Ill.App. 494 (4th Dist. 1910), and Lau v. City of Chicago, 153 Ill.App.50 (1st Dist. 1910). The Farrell Decision The appellate court’s recent decision in Farrell reaffirmed both the vitality of the Kahn Doctrine and the viability of the “obvious risk” exception, clarifying the current state of this particular area of law for general contractors. In Farrell, a 12-year-old boy was injured on defendant’s property, which contained buildings, planted cornfields and dirt paths. Farrell, 2016 IL App (3d) 160220, ¶ 3. While riding down one of the paths on a dirt bike, the boy collided with an all-terrain vehicle operated by another minor and sustained injury as a result. Id. The injured boy’s mother filed an action on his behalf, alleging negligence against the defendant landowner and asserting the defendant landowner failed to exercise reasonable care to ensure the property was safe “for the use of children[.]” Id. ¶ 4. In particular, plaintiff alleged defendant failed to warn children on the property of dangers

presented to children on dirt bikes by objects contained within the dirt paths on the property, as well as by tall, mature corn stalks impeding visibility of and from riders on the dirt paths. Id. The defendant-landowner filed a motion for summary judgment, arguing she owed no duty to protect the plaintiff from the risks associated with dirt bike operation on her property. Id. ¶ 5. The trial court granted that motion, finding: (1) the boy’s parents, not the defendantlandowner, held the duty to provide for their son’s safety; and (2) the plaintiff could not establish proximate cause against the defendant-landowner because the parental decision to allow plaintiff to operate the dirt bike, rather than any particular condition of defendant’s property, was the true proximate cause of the accident in question. Farrell, 2016 IL App (3d) 160220, ¶ 15. The plaintiff appealed to the Illinois Appellate Court Third District, arguing the trial court erred in granting the defendant landowner’s motion for summary judgment. Id. ¶ 14. On appeal, the Third District affirmed the trial court’s order granting summary judgment. Id. ¶ 24. Relying on Kahn, the appellate court reiterated that the customary rules of ordinary negligence are to be applied when analyzing whether to impose liability on a landowner or a party in possession of a premises in connection with an injury to a minor sustained on the property. Id. ¶ 18, citing Cope, 102 Ill. 2d at 286 and Corcoran, 73 Ill. 2d at 326. In doing so, the Third District recapped the applicable duty as follows: [T]he law imposes a duty upon a landowner to exercise reasonable care to remedy a dangerous condition on the premises, or to otherwise protect children from

injury resulting from the dangerous condition, where: (1) the landowner knew or should have known that children habitually frequent the property; (2) a defective structure or dangerous condition was present on the property; (3) the defective structure or dangerous condition was likely to injure children because they are incapable, based on age and maturity, of appreciating the risk involved; and (4) the expense and inconvenience of remedying the defective structure or dangerous condition was slight when compared to the risk to children. Farrell, 2016 IL App (3d) ¶ 18 citing Choate, 2012 IL 112948, ¶ 27. Ultimately, the Third District affirmed the trial court’s ruling, applying the “obvious risk” exception to the Kahn Doctrine. Id. ¶ 19. The court classified the act in question—operating a dirt bike on a dirt road where tall corn blocked visibility—as an “obvious danger” such that liability was not established against the defendant landowner and summary judgment was proper in the trial court. Id. In pertinent part, the appellate court affirmed as follows: We find that operating a dirt bike in an area with diminished visibility due to tall corn on defendant’s property was an open and obvious danger that plaintiff should have appreciated. We note that plaintiff was 12 years old at the time of the incident and, according to [the plaintiff’s mother’s] affidavit, had operated dirt bikes and ATVs on defendant’s property

on prior occasions. We do not find that any of the exceptions to the open and obvious rule would apply in this situation. Therefore, defendant had no duty to protect plaintiff from the open and obvious danger presented by operating a dirt bike in an area containing tall corn. See,  e.g.,  Cope, 102 Ill. 2d at 286. Id. at 21. Farrell, 2016 IL App (3d) ¶ 21. Despite the court’s reliance on the “obvious risk” exception, the appellate court’s emphasis on Kahn confirms the general proposition that under Illinois law, to impose liability on a landowner or general contractor for an injury caused to a minor on the premises, the foreseeability of harm is still the “cornerstone” of liability. See Choate, 2012 IL 112948, ¶ 28. Conclusion The Farrell decision confirms that Illinois law requires landowners, and general contractors acting on their behalf, to fix any dangerous conditions or defective structures on their property that are likely to injure children where: (1) children regularly frequent the area, and (2) the expense and inconvenience of remedying the issue pales in comparison to the risk it presents to children. Farrell, 2016 IL App (3d) ¶ 18. While most construction sites contain a wide variety of conditions that could potentially be construed as likely to injure young children, such is simply the nature of the business. Therefore, general contractors are reminded that reasonable measures should be implemented to promote safety and prevent children from gaining access to their worksites. For example, all — Continued on next page

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jobsites should be secured with fencing of appropriate height and strength, as well as adorned with clear warning signs calculated to stop children from wandering into the work space. In addition, steps should be taken to neutralize “dangerous conditions” where feasible. Although the safety measures to be taken will be project-specific and vary from site to site, contractors are reminded to promulgate and update their safety regulations, conduct regular safety inspections, and remind workers of the more obvious precautions, such as disabling all machinery when not in use.

Where it is foreseeable that a child could be injured as the result of a particular instrumentality onsite, precautions must be taken to remedy that problem.

General contractors should bear in mind that as summer heats up, so too does the temptation for minors to get enter their jobsites. Where it is foreseeable that a child could be injured as the result of a particular instrumentality onsite, precautions must be taken to remedy that problem.

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Civil Rights Update John P. Heil, Jr. Heyl, Royster, Voelker & Allen, P.C., Peoria

Plaintiffs’ Section 1983 Right to Poll the Jury: Recent Seventh Circuit Jurisprudence For those who defend federal civil rights actions against incarcerated or civilly committed litigants, the court’s practices regarding the movement of the plaintiff in and out of the courtroom during trial can have important appellate consequences. In its recent opinion in Smego v. Payne, 854 F.3d 387 (7th Cir. 2017), the United States Court of Appeals for the Seventh Circuit analyzed an important question: whether a district court’s decision to exclude the plaintiff from a civil jury’s reading of its verdict was an impermissible abuse of discretion, where the plaintiff was represented in open court by appointed law students who declined to poll the jury after it announced its verdict. Under the circumstances of this case, no reversible error occurred; however, the court’s opinion reminds us of the potential significance of seemingly innocuous decisions made toward the end of trial. Background Richard M. Smego, a civilly committed sex offender residing at the Rushville, Illinois detention facility, has a long history of litigating pro se civil rights actions. In this particular case, he sued members of his treatment team, claiming that they forced him to continue participating in group therapy sessions with another offender who,

Smego claimed, sexually assaulted him at the facility. Smego, 854 F.3d at 389. In a prior ruling, the Seventh Circuit found that Smego was entitled to a jury trial on his claims. Id. (citing Smego v. Payne, 469 F. App’x 470 (7th Cir. 2012)). On remand, the district court appointed clinical students from University of Illinois College of Law to represent Smego. Smego, 854 F.3d at 389-90. Although Smego typically appeared for court hearings via video conference or telephone, he was present in the courtroom for the three-day civil trial pursuant to a writ of habeas corpus ad testificandum. Id. at 390. On the trial’s final day, the court conducted an off-the-

About the Author John P. Heil, Jr. is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C., where he chairs the firm’s drone law practice group and is vice-chair of the business and commercial litigation practice group. He also regularly defends complex civil rights cases, qui tam actions and catastrophic tort suits in state and federal court. Prior to joining Heyl Royster in 2007, Mr. Heil was an Assistant State’s Attorney in Cook County for eleven years. He received his undergraduate degree from Bradley University in 1993 and his law degree from Chicago-Kent College of Law, with honors, in 1996. He is a member of the Illinois Association of Defense Trial Counsel, the Federal Bar Association, the Illinois State Bar Association, the Peoria County Bar Association, and the Abraham Lincoln American Inn of Court.

record discussion with the parties following closing arguments. At that time, the judge ordered Smego returned to Rushville. This order was not repeated on the record, and no cautionary instruction was issued to the jury regarding Smego’s absence from the proceedings. Id. The jury was released for its deliberations and notified the court it had reached a verdict approximately an hour and a half later. Upon the jury’s return to the courtroom, Smego was no longer there. The law students appointed to represent him were present, however. The verdict—signed by all ten jurors—found in favor of the defendants as to all claims. Id. Immediately after the jury’s verdict was announced, the trial judge asked the law students whether they wanted the jurors polled. One law student, without consulting Smego, answered in the negative. The students were then granted leave to end their representation of Smego. Id. Acting on his own behalf, Smego timely filed a notice of appeal and, separately, a motion to correct the record under Federal Rule of Appellate Procedure 10. Subsequently, the district court entered a text order regarding the timing of Smego’s transportation back to Rushville. It stated, in pertinent part, that Smego was transported back to Rushville “after the closing arguments and the jury was sent to deliberate.” Id. at 390-91. The order further stated that this “was the court’s standard practice before Verser v. Barfield, 741 F.3d 734 (7th Cir. 2013).” Smego, 854 F.3d at 391. The Verser Decision The Seventh Circuit’s Verser opinion was issued shortly after Smego’s trial.

The question facing the Verser court was whether Rule 48(c) requires courts to ensure that a party is somehow afforded the opportunity to make a polling request following the reading of a jury verdict.

In Verser, a pro se inmate proceeded to trial on Eighth Amendment excessive force claims against correctional officers at Western Illinois Correctional Center. Verser, 741 F.3d at 737. Following closing arguments and jury instructions, the district judge in Verser ordered the plaintiff back to prison while the court and defense counsel awaited the jury’s verdict. This was performed on the record. Id. Over the next few hours—and with the plaintiff no longer present—the jury sent three notes to the court. The final note asked the judge whether a juror could “ask a question to the judge after the verdict is read.” Id. The court answered, “First, I have to have a verdict.” Id. The Verser jury rendered its verdict in favor of the defendants. In light of the final note, the district judge inquired as to the juror’s question. One member of the jury responded that the case “was very hard for us” and that “the majority feel that the defendants all had a part to play in what happened . . . but, because there was a lack of evidence, we could not find the defendants guilty.” Id. Verser received notice of the verdict by mail. He then filed an appeal, arguing, among other things, that his removal from the courtroom prevented him from exercising his right to poll the jury under Federal Rule of Civil Procedure 48(c). Id. at 737-38.

In its 2013 opinion, the Seventh Circuit examined the purpose and extent of Federal Rule of Civil Procedure 48(c). It observed that polling a jury is intended to “ensure jurors’ accountability for the verdict, ‘creating individual responsibility’ and ferreting out any dissent that, for whatever reason, was not reflected in the verdict as announced.” Verser, 741 F.3d at 738 (quoting United States v. Shepherd, 576 F.2d 719, 725 (7th Cir. 1978)) (internal quotations omitted). The court noted that the right to poll a jury, although not of a constitutional magnitude, is “substantial” and “that a district court’s refusal, or even neglect, to conduct a jury poll upon a timely request is ground for a new trial.” Verser, 741 F.3d at 738 (citing United States v. F.J. Vollmer & Co., 1 F.3d 1511, 1522 (7th Cir. 1993)). The question facing the Verser court was whether Rule 48(c) requires courts to ensure that a party is somehow afforded the opportunity to make a polling request following the reading of a jury verdict. Verser, 741 F.3d at 739. The court answered in the affirmative, stressing that the plaintiff was not only unable to poll the jury, but that he “was left incommunicado, unable to contribute to questions that arose while the jury was deliberating and unable to respond — Continued on next page

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to the verdict with a request for a poll.” Id. at 740. In light of the circumstances and the reservations expressed by one or more jurors, it found reversible error and remanded the matter for a new trial. Id. at 742-43.

remind the court to protect the rights of our opponents.

Smego’s Holdings

incommunicado during the jury’s deliberations.

The Seventh Circuit’s consideration of Smego’s appeal took place in the shadow of the Verser decision. An unrelated threshold question, however, involved the timing of his removal from the courtroom. Smego argued that he was removed before the jury received the case, thus alerting the jurors to his absence and potentially resulting in prejudice against him. Smego, 854 F.3d at 390, 392. This stood in sharp contrast to the court’s text order claiming that Smego was transported to Rushville only after the jury was sent to deliberate, consistent with the court’s standard pre-Verser practice. Id. at 390-91, 394. The Seventh Circuit noted that the timing in Verser (which involved the same district court judge) was identical, which seemed to confirm the existence of a “standard practice” by the court prior to Verser. With the evidence as to timing “inconclusive,” the court found nothing warranting a finding that the timeline set forth in the district judge’s text order was clearly erroneous. Id. at 394. Con-

As defense counsel, it is not often our responsibility to In pro se cases, however, remain vigilant after closing arguments and make sure the plaintiff is not

sequently, no evidence suggested that the jury was aware of Smego’s absence prior to—or during—its deliberations. Smego’s absence thus could not have affected its verdict. Id. Remaining for the court’s consideration was whether, in light of Verser, Smego’s unavailability to poll the jury constituted error mandating a new trial. The court initially reiterated the importance of the right to poll jurors pursuant to Rule 48(c). Id. at 395. It then found many important distinctions between Smego’s experience and Verser’s. Unlike Verser, Smego was at all relevant times represented by counsel, and his legal representatives remained in the courtroom after he was gone. Id. Smego urged that, regardless of the law students’ presence on his behalf, he was nevertheless left “incommunicado” like Verser. Smego, 854 F.3d at 396. The court rejected this comparison, noting that “[l]awyers often act on their clients’ behalf outside their

Unlike Verser, Smego was at all relevant times represented by counsel, and his legal representatives remained in the courtroom after he was gone.

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clients’ presence” and finding “no reason why this should not extend to counsel’s ability to waive polling the jury.” Id. The court went further, stating that even if Smego’s law student representatives could not waive his right to poll the jury, he “would likely still be out of luck” in light of the quick and unanimous verdict by a jury that did not show “any signs of doubt or dissent.” Id. at 397. There was, in the court’s view, significantly less risk of harm to Smego than to Verser. Conclusion Although the Seventh Circuit found no reversible error in Smego, its opinion reminds us of the importance of the right to poll jurors after they render their verdict. If Smego was pro se, like Verser, a new trial would likely have resulted. As defense counsel, it is not often our responsibility to remind the court to protect the rights of our opponents. In pro se cases, however, remain vigilant after closing arguments and make sure the plaintiff is not incommunicado during the jury’s deliberations. It may serve to protect a hard-earned verdict on behalf of your client.

Young Lawyers Report James P. DuChateau HeplerBroom LLC, Chicago

Young Lawyers Division: The Year in Review Finishing the IDC’s year off on the right note, and reflecting on the activities and accomplishments of the Young Lawyers Division (YLD), I would like to recognize my predecessor, Liz Barton of Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C. for the substantial efforts she put forth on the IDC’s behalf. With her leadership, the Young Lawyers Division (YLD) made meaningful contributions to the IDC and the legal community as a whole. The proverbial torch was passed to me, along with my vice chair, John Eggum of Foran Glennon Palandech Ponzi & Rudloff, P.C. We endeavored to continue and build on Liz’s legacy of dedication and service to the YLD.

through adoptaclassroom.org. Next, the YLD had a successful Thanksgiving food drive that raised over 1,300 meals for the Greater Chicago Food Depository, through monetary and food-item donations. The year concluded with the annual “Spirit of the Season” fundraiser, held in conjunction with the annual holiday party at Lloyd’s in Chicago. Through membership generosity, the YLD raised more than $1,000, which was donated to the Pro Bono Network and the Land of Lincoln Legal Assistance Foundation. In 2017, the YLD sponsored a happy hour and bowling fundraiser in Edwardsville, Illinois, with all proceeds benefitting “Got Your Six Support Dogs,” a nationwide charitable organization that

Through the hard work of our dedicated committee members the YLD did what we always do—host a number of fun events designed to bring the membership together to benefit a number of charitable causes. But, the YLD did more than that. To that end, the YLD hosted a full calendar of events throughout 2016-17, beginning last August. Working with HeplerBroom’s Edwardsville office, the YLD spearheaded a successful and spirited networking happy hour and fundraiser to benefit Stray Rescue of Saint Louis. The YLD once again hosted a “Back to School” event that benefitted the Chicago Public Schools

supports veterans and first-responders struggling with Post Traumatic Stress Disorder. And, in May the YLD participated in the Bowl-for-Kids’ Sake at Edison’s in Edwardsville, Illinois. The YLD has a long and proud history of organizing events that both promote member fellowship and raise money for worthy causes. This year, the YLD expanded on the law school

outreach program with vice chair John Eggum and IDC Board of Director Ian Russell, of Lane & Watterman, LLP, leading a delegation to the University of Iowa where they gave a presentation to third year law students on the keys to being a successful associate. The program was a success and on March 1, 2018, will expand its law school outreach to law schools in Chicago and St. Louis. Finally, the YLD rounded out the IDC year with an evening of White Sox baseball under the lights in Chicago. This was a great year for the YLD. Through the hard work of our dedicated committee members the YLD did what we always do—host a number of fun events designed to bring the membership together to benefit a number of charitable causes. But, the YLD did more than that. If you are interested in participating in and attending YLD events, reach out to 2017-2018 chair John Eggum, vice chair Sheina Franco, or any other member. We look forward to another great year of events for the YLD.

About the Author James P. DuChateau is a partner in the Chicago office of HeplerBroom LLC, where he concentrates his practice in the areas of insurance coverage and commercial law in State and Federal Courts throughout the Midwest and Mountain West, including the investigation and litigation of first-party property claims, commercial general liability defense, prosecution of declaratory matters for non-coverage under personal and commercial policies and the defense of bad faith and extra contractual liability matters. Mr. DuChateau counsels both property and casualty carriers during the claim process, and also regularly represents Illinois financial institution clients in both UCC and REO matters, as well as trade secret and restrictive covenant litigation.

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Association News

IDC Officers and Directors Elected, Appointed Laura K. Beasley of Joley, Oliver & Beasley, Belleville, was elected 2017-2018 IDC Secretary/Treasurer and to a position on the Executive Committee at the Annual Meeting held June 30, 2017. Ms. Beasley will move up the Executive Committee ladder to become president in June 2021. Other officers on the Executive Committee include President Michael L. Resis of SmithAmundsen LLC, Chicago; President Elect Bradley C. Nahrstadt of Lipe, Lyons, Murphy, Nahrstadt & Pontikis, Ltd., Chicago; First Vice President William K. McVisk of Johnson & Bell, Ltd., Chicago; and Second Vice President Nicole D. Milos, Cremer, Spina, Shaughnessy, Jansen + Siegert, LLC, Chicago. The following members were elected to three-year terms on the IDC Board of Directors: James P. DuChateau, 62 | IDC QUARTERLY | Third Quarter 2017

HeplerBroom LLC, Chicago; Edward K. Grassé, Busse, Busse & Grassé, P.C., Chicago; John P. Heil, Jr., Heyl, Royster, Voelker & Allen, Peoria; David A. Herman, Giffin, Winning, Cohen & Bodewes, P.C., Springfield; Seth D. Lamden, Neal, Gerber & Eisenberg LLP, Chicago; and Gregory W. Odom, HeplerBroom LLC, Edwardsville. John F. Watson of Craig & Craig, LLC, Mattoon, was appointed to fill the board position left vacant when Laura K. Beasley was elected Secretary/Treasurer. Kimberly A. Ross of Ford & Harrison LLP, Chicago; Cecil E. Porter, III of Litchfield Cavo, LLP, Chicago; and Jennifer A. Winking of Scholz, Loos, Palmer, Siebers & Duesterhaus, Quincy, were appointed to serve as Directors at Large.

IDC Presents Awards At the Awards Luncheon, several members were recognized for their service. David H. Levitt of Hinshaw & Culbertson, LLP, Chicago, was recognized with the Distinguished Member Award, and John Eggum of Foran Glennon Palandech Ponzi & Rudloff, PC, Chicago, was recognized with the Rising Star Award. Michael L. Resis of SmithAmundsen LLC, Chicago, was recognized with the President’s Award; and Denise Baker-Seal of Brown & James, P.C., Belleville, was recognized with the Volunteer of the Year Award. Meritorious Service Awards were presented to Jeremy T. Burton of CNA Insurance Company, Chicago; Anthony G. Joseph of HeplerBroom LLC, Chicago; Thomas L. O’Carroll of Hinshaw & Culbertson, LLP; Benjamin J. Samuelson, of Betty, Neuman & McMahon, P.L.C., Davenport, IA; and

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Ian Russell of Lane & Waterman, LLP, Davenport, IA, for their service on the IDC Board of Directors.

The Meritorious Service Award was also presented to Denise Baker-Seal of Brown & James, P.C., Belleville, for her service as Employment Law Committee Chair; Adam C. Carter of Cray Huber Horstman Heil & VanAusdal LLC, Chicago, for his service as Civil Practice Committee Chair; James DuChateau of HeplerBroom LLC, Chicago, for his service as Young Lawyers Division Chair; Brad Elward of Heyl, Royster, Voelker & Allen, P.C., Peoria, for his service as the IDC Survey of Law Editor in Chief; Patricia J. Hogan of Cassiday Schade LLP, Chicago, for her service as Construction Law Com-

mittee Co-Chair; N. Drew Kemp of Tucker Ellis, St. Louis, for his service as Tort Law Committee Chair; Mark J. McClenathan of Heyl, Royster, Voelker & Allen, P.C., Rockford, for his service as Commercial Law Committee Chair; Nicole D. Milos of Cremer, Spina, Shaughnessy, Jansen + Siegert, LLC¸ Chicago, for her service as IDC Survey of Law Managing Editor; Patrick W. Stufflebeam of HeplerBroom LLC, Edwardsville, for his service as Membership Committee Chair; Aleen Tiffany of HeplerBroom LLC, Crystal Lake, for her service as Construction Law Committee Co-Chair; and John F. Watson of Craig & Craig, LLC, Mattoon, for his service as the IDC Quarterly Editor in Chief.

President’s Award Presented to Michael L. Resis

President R. Mark Mifflin presented the 2017 President’s Award to Michael L. Resis of SmithAmundsen, LLC, Chicago at the IDC Annual Meeting and Awards Luncheon in June. In honoring Mr. Resis, President Mifflin remarked that “Mike has served — Continued on next page

DRI Recognizes Mifflin R. Mark Mifflin of Giffin, Winning, Cohen & Bodewes, P.C., Springfield, was recognized at the IDC Awards Luncheon by DRI Executive Director John R. Kouris with the DRI Exceptional Performance Citation. This citation recognizes Mr. Mifflin for having supported and improved the standards of education of the defense bar and for having contributed to the improvement of the administration of justice in the public interest. Third Quarter 2017 | IDC QUARTERLY | 63

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on the Board of Directors and the Executive Committee for many years and remains a common-sense participant on all issues. Mike served as the guiding force for the amicus committee and set the framework for the past, present and future successful functioning of this vital committee. Mike will be a great president of the IDC next year.” In accepting the award, Michael said “I am deeply honored to receive this award, coming as it does from Mark, our immediate past president, and I look forward to serving with my fellow officers and members of the board of directors in the coming year.” Michael Resis is a founding partner and chairman of SmithAmundsen’s appellate department. He has practiced law in Chicago for more than 30 years and handled more than 600 appeals. Mike has represented government, business and professional organizations as amicus curiae before the Illinois Supreme Court and the Illinois Appellate Court. He is admitted to practice in the state of Illinois, before the United States Supreme Court, the United States Court of Appeals for the Seventh Circuit, the United States Court of Appeals for the Sixth Circuit, the United States Court of Appeals for the Third Circuit, the United States Court of Appeals for the Eleventh Circuit, the Northern District of Illinois, and the Eastern District of Wisconsin. He has been admitted pro hac vice before the Wisconsin Supreme Court, the Wisconsin Court of Appeals, the Iowa Court of Appeals, the Indiana Court of Appeals, the Washington State Court of Appeals, and the Missouri Court of Appeals. In addition to his involvement with the Illinois Association of Defense Trial Counsel, Michael is a past member of the Board of Directors for the Illinois Appellate Lawyers Association. 64 | IDC QUARTERLY | Third Quarter 2017

IDC Distinguished Member Award Presented to David H. Levitt The 2017 IDC Distinguished Member Award was presented to David H. Levitt, an exceptional member of the Illinois Association of Defense Trial Counsel (IDC). Chicago attorney David H. Levitt of Hinshaw & Culbertson, LLP has distinguished himself throughout his career, both with the IDC and numerous other organizations. IDC President R. Mark Mifflin of Giffin, Winning, Cohen & Bodewes, P.C. in Springfield, remarks “Dave is a long-serving member of the IDC Board of Directors and the Executive Committee and has devoted a significant amount of time and expertise to the function of the IDC. He continues to serve as our representative to the Defense Research Institute (DRI) and a resource for answers for many of our legal questions, as they arise.”

Accepting the award, David stated: IDC has always held a special place in my professional career. As a young attorney, I found that IDC provided the best CLE —programs that were directly related to my practice and what I needed to learn to grow as an attorney. Over the years, I have continued to find that the quality of IDC’s publications and programs are unmatched – I always come away impressed by the depth and breadth of the talent of IDC’s membership across Illinois, and I always learn something valuable. Even more recently, I have had more than one occasion when participation in IDC has provided insight that

had a direct benefit to me, to my law firm, and to our clients. One of my reasons for participation in IDC is the opportunity to impact the law that faces our clients. In addition to IDC’s wonderful CLE and publications, participation in amicus and legislative development has provided, and continues to provide, particular satisfaction. Even when we have not been able to prevail fully, especially given the political climate of our state, I can say with confidence that IDC’s participation has made a difference. Plus, it almost (but not quite) goes without saying: the people that I have had the chance to get to know through IDC are among the best and most talented professionals that I’ve ever met – in addition to being genuinely nice people. Thus, it is especially gratifying to be recognized for this award by those that I hold in such high esteem. Thank you from the bottom of my heart. David Levitt is an experienced trial lawyer who focuses his practice in a number of distinct areas. His primary practice is intellectual property, with wide experience in insurance, commercial litigation, products liability, and trucking. David joined Hinshaw & Culbertson, LLP in 1979. He is a member of the Illinois Association of Defense Trial Counsel, American Bar Association, American Intellectual Property Law Association, and the Defense Research Institute (DRI).

John Eggum Receives the 2017 IDC Rising Star Award John Eggum of Foran Glennon Palandech Ponzi & Rudloff, PC is the 2017 recipient of the Illinois Association of Defense Trial Counsel (IDC) Rising Star Award. The award was presented during the organization’s 53rd Annual Meeting, held June 30, 2017, in Chicago. Mr. Eggum distinguished himself by serving as Vice Chair of the IDC Legislative Committee and Young Lawyers Division (YLD). His involvement with the IDC Legislative Committee included monitoring legislation, offering testimony in the Illinois General Assembly, and authoring the IDC Quarterly Legislative Update column. In addition, John was actively involved with the YLD Spirit of the Season Fundraiser, young lawyer outings and educational programs, and outreach to law school students. Past President R. Mark Mifflin of Giffin, Winning, Cohen & Bodewes, P.C., in Springfield, remarks “John has been an active member of the Young Lawyers Division of the IDC, including co-chairing a very successful Spirit of the Season charitable fundraiser. He has also

been actively involved as Vice Chairman of the Legislative Committee. John has expended a great deal of time and effort for many different activities for the IDC. We look forward to many great things from John.” “IDC is distinguished both by the work it does and, perhaps more importantly, the great people that contribute to IDC. I have enjoyed the last several years working with IDC immensely, and am honored to receive the Rising Star Award. I look forward to many more years of helping the organization continue to grow and improve the practice of law in Illinois,” said John. John Eggum is a partner with Foran Glennon Palandech Ponzi & Rudloff P.C. in Chicago, where he concentrates his practice on insurance coverage matters and commercial litigation. He represents insurers, TPAs, brokers, and captive managers in professional liability disputes, and also litigates cyber/technology liability claims. Mr. Eggum’s law degree was obtained, with distinction, from The — Continued on next page

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University of Iowa College of Law, and following law school, he served as the law clerk to the Hon. Bruce A. Markell in the United States Bankruptcy Court for the District of Nevada, in Las Vegas.

Denise Baker-Seal Named IDC Volunteer of the Year

Denise Baker-Seal, principal with the Belleville law firm of Brown & James, P.C. has been named the 2017 IDC Volunteer of the Year. Ms. BakerSeal was recognized for her contributions to the IDC, specifically as they relate to the association’s Employment Law Committee and Survey of Law publication. “I am greatly humbled to be receiving the Volunteer of the Year Award, particularly because I know there are many other IDC members who have worked incredibly hard to support the organization and its mission over the past year. I appreciate the honor and look forward to continuing to work with my IDC colleagues,” said Ms. Baker-Seal. IDC President R. Mark Mifflin commented that “Denise has been a versatile resource for the IDC, including her involvement as Chair of the Employment 66 | IDC QUARTERLY | Third Quarter 2017

Law Committee and co-managing editor for the Survey of Law. She is always willing to help and has been a great asset for the IDC.” IDC Executive Director Sandra Wulf remarked “Every year I am privileged to recognize one of our many volunteers who have raised their hand and said, ‘I want to be involved.’ Our 2017 Volunteer of the Year is a member who not only continues to raise her hand, but jumps wholeheartedly into whatever is asked of her. Whether it be her service on the Board; as the Employment Law Committee Chair; or our Survey of Law Managing Editor, Denise Baker-Seal epitomizes a great volunteer. Knowledgeable, personable, and enthusiastic—Denise has it all.” Denise Baker-Seal focuses her practice on the defense of employment matters and catastrophic injury cases. She frequently represents employers and other businesses, including product manufacturers, truck lines, and property owners. She participates as an arbitrator in the St. Clair County and Madison County mandatory arbitration program. She serves on the firm’s employee/ personnel committee and is also the co-founder of the Fifth Friday Initiative to increase retention and promotion of women in the firm. Prior to entering private practice, Denise served as the Judicial Law Clerk to the Honorable Lewis M. Blanton, U.S. Magistrate Judge. A graduate of Millikin University and Northeastern University School of Law, Denise is admitted to

the bars of Illinois and Missouri and all federal courts in Illinois. She is a member of the Illinois Association of Defense Trial Counsel, Defense Research Institute (DRI), Illinois State Bar Association, and the Federal Bar Association.

Thank you to our Annual Meeting Sponsors! Firm Sponsors

Event Sponsors

IDC 2017 Annual Meeting

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IDC After Hours

THE IDC MONOGRAPH: The Tort Immunity Act Dustin S. Fisher Judge, James, Hoban & Fisher, LLC, Park Ridge John M. O’Driscoll Tressler LLP, Bolingbrook Elizabeth K. Barton Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., Chicago Emily J. Perkins Heyl, Royster, Voelker & Allen, P.C., Peoria

IDC QUARTERLY | Volume 27 Number 3

The Tort Immunity Act When plaintiffs’ attorneys are looking for deep pockets, they look to public entities, who they believe are flush with money from assessments, taxes, tickets, and tolls. To discourage targeting of local government entities and their employees, and to protect taxpayers’ contributions to the public coffers, the legislature grants a number of immunities and defenses that shield local government entities and their employees from tort liability for acts and omissions arising out of the execution of public duties.

Employees Tort Immunity Act (the “Act”).1 The Act was enacted, in part because of the Illinois Supreme Court’s rejection of the principles underlying the sovereign immunity doctrine2 in Molitor v. Kaneland Community Unit District No. 302.3 It is, therefore, in derogation of the common law action against governmental entities and it limits the liability of such bodies.4 The Act does not impose duties but, instead, only confers immunities and defenses.5 The Act explicitly states that its purpose “is to protect local public entities and public employees from liability arising from the operation of government. It grants only immunities and defenses.”6 The purpose of the Act is to prevent the diversion of public funds from their intended purpose to payment of damage claims.7

The Act accomplishes its purpose by immunizing local public entities and employees from negligence in executing their public duties. In some circumstances, however, the Act expressly eliminates immunity for “willful and wanton conduct,” thereby exposing a public entity to liability for egregious conduct. The Act defines “willful and wanton conduct” as “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.”8 There is no bright-line test for willful and wanton conduct. Rather, whether a public entity’s acts constitute willful and wanton conduct depends on the facts of each particular case.9 Courts have con-

Dustin S. Fisher is a partner at Judge, James, Hoban & Fisher, LLC. Mr. Fisher’s practice is focused on civil litigation and has broad experience in personal injury defense, tort immunity, municipal liability, business litigation, sports liability, FELA, defamation, 1983 actions, construction defects and administrative reviews. Prior to obtaining his juris doctor, Mr. Fisher was a fraud investigator examining personal injury claims for fraud and is an expert on social media discovery and investigations. He was selected by Leading Lawyers, a division of the Law Bulletin Publishing Company, as an Emerging Lawyer—an award given to the top 2% of lawyers who are 40 years old or under who have proven themselves as professional, ethical and experienced.

bodies such as municipalities, school districts, library districts and park districts. Mr. O’Driscoll handles dayto-day government operations issues as well as a wide variety of areas such as business litigation, breaches of contract, construction issues, employment disputes, ordinance violations, “sunshine laws” compliance, internet defamation, and complex litigation. He has been selected for inclusion in Illinois Super Lawyers® for 2012 and 2013 and in Illinois Super Lawyers Rising Stars® from 2008–2011. He has also been recognized as a “Leading Lawyer” by the Leading Lawyers® Network. He has received the Illinois Association of Defense Trial Counsel’s President’s Award and also the Meritorious Service Award for his outstanding service as co-chair of the IDC Commercial Litigation Committee. John is co-author of the Municipal Litigation chapter of the Illinois Municipal Law Series and co-author of the Park District chapter of Illinois Special District Series published by the Illinois Institute for Continuing Legal Education.

with a primary emphasis in the defense of Section 1983 allegations of police misconduct. Ms. Barton received her J.D. from The John Marshall Law School and her undergraduate degree from the University of Iowa, with honors. Ms. Barton is a member of the IDC Young Lawyers Division.

John M. O’Driscoll is a partner based out of Tressler LLP’s Bolingbrook and Chicago offices. His practice includes representing companies and individuals in business disagreements and providing general counsel services to local governmental

Elizabeth K. Barton is an associate with the Chicago office of Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., where she is a member of the firm’s litigation group. Her practice is focused on defending government entities in civil litigation,

I. Overview The immunities and defenses available to local government entities and their employees are enumerated in the Local Governmental and Governmental

About the Authors

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Emily J. Perkins is an associate in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. She concentrates her practice in the area of employment/labor law, governmental law, and Section 1983 civil rights litigation. Ms. Perkins is involved in various employment matters, including hostile work environment issues, discrimination, and retaliation claims against employers. She works with employers of public entities in negotiating collective bargaining agreements and defending against unfair labor practice charges. Ms. Perkins has successfully defended clinical therapists and law enforcement officers in Section 1983 claims, and represented townships, villages, road districts and other governmental entities in a variety of litigation areas.

sistently held, however, that willful and wanton conduct requires more than mere inadvertence or inattentiveness.10 Courts consider a totality of the evidence when determining whether conduct was willful and wanton.11 It is the plaintiff’s burden to prove willful and wanton conduct and it is a substantial one. The Act is broad ranging and applies “to every kind of local governmental body.”12 Section 1-206 of the Act defines a local public entity entitled to the Act’s immunities and defenses as follows: “Local public entity” includes a county, township, municipality, municipal corporation, school district, school board, educational service region, regional board of school trustees, trustees of schools of townships, treasurers of schools of townships, community college district, community college board, forest preserve district, park district, fire protection district, sanitary district, museum district, emergency telephone system board, and all other local governmental bodies. “Local public entity” also includes library systems and any intergovernmental agency or similar entity formed pursuant to the Constitution of the State of Illinois or the Intergovernmental Cooperation Act as well as any not-for-profit corporation organized for the purpose of conducting public business. It does not include the State or any office, officer, department, division, bureau, board, commission, university or similar agency of the State.13

Courts consider a totality of the evidence when determining whether conduct was willful and wanton. It is the plaintiff’s burden to prove willful and wanton conduct and it is a substantial one.

Even though this definition of “local public entity” seems rather specific, Illinois courts have “widely recognized various public entities as coming within the definition of local public entity, although those entities were not expressly identified in section 1-206.”14 Therefore, defense counsel should consider carefully whether the Act applies to their clients, particularly in contexts that might not seem applicable at first glance.15 For purposes of interpreting this section, “public business” should be understood to possess its plain, ordinary, and commonly understood meaning–the paramount inquiry must be whether the entity is involved in the operation of government.16 Where an entity is created for the express purpose of performing public or governmental functions, the entity conducts “public business” and is tightly enmeshed with government such that the entity constitutes a form of a “local government body.”17 Once it is determined that a body fits the definition of “local public entity,” the Act’s one-year statute of limitations often creates the first barrier against liability. Specifically, Section 8-101 of the Act provides: Limitation. (a) No civil action other than an action described in subsection (b) may be commenced in any

court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. (b) No action for damages for injury or death against any local public entity or public employee, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of those dates occurs first, but in no event shall such an action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in the action to have been the cause of the injury or death.18 Further, the Act expressly prohibits the imposition of punitive damages against a local public entity despite the existence of another statute or common— Continued on next page

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law theory that might otherwise allow them. Section 2-102 of the Act states: Notwithstanding any other provision of law, a local public entity is not liable to pay punitive or exemplary damages in any action brought directly or indirectly against it by the injured party or a third party. In addition, no public official is liable to pay punitive or exemplary damages in any action arising out of an act or omission made by the public official while serving in an official executive, legislative, quasi-legislative or quasi-judicial capacity, brought directly or indirectly against him by the injured party or a third party.19 Similarly, immunity against punitive damages is provided to “public employees” who determine policy or exercise discretion on legislative matters under Section 2-213 of the Act, which states: Notwithstanding any other provision of law, a public employee is not liable to pay punitive or exemplary damages in actions brought against the employee based on an injury allegedly arising out of an act or omission occurring within the scope of employment of such an employee serving in a position involving the determination of policy or the exercise of discretion when the injury is the result of an act or omission occurring in the performance of any legislative, quasi-legislative or quasi-judicial function, even though abused.20

Therefore, while these municipal employees generally are immune from punitive damages when sued in their official capacity, they may be held liable for punitive damages when sued in their personal capacity. Another important aspect of the Act is the indemnification provided to employees of public entities. Section 2-302 of the Act provides: If any claim or action is instituted against an employee of a local public entity based on an injury allegedly arising out of an act or omission occurring within the scope of his employment as such employee, the entity may elect to do any one or more of the following: (a) appear and defend against the claim or action; (b) indemnify the employee or former employee for his court costs or reasonable attorney’s fees, or both, incurred in the defense of such claim or action; (c) pay, or indemnify the employee or former employee for a judgment based on such claim or action; or (d) pay, or indemnify the employee or former employee for, a compromise or settlement of such a claim or action.21 Section 2-302, however, also provides, as a matter of public policy, “no local public entity may elect to indemnify an employee for any portion of a judgment representing an award of punitive or exemplary damages.”22

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II. Supervision Immunity Section 3-108 of the Act bestows immunity upon local public entities and their employees for their supervision or failure to supervise activities on or for the use of public property.23 Commonly referred to as “supervision immunity,” Section 3-108 provides: (a) Except as otherwise provided in this Act, neither a local public entity nor a public employee who undertakes to supervise an activity on or the use of any public property is liable for an injury unless the local public entity or public employee is guilty of willful and wanton conduct in its supervision proximately causing such injury. (b) Except as otherwise provided in this Act, neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property unless the employee or local public entity has a duty to provide supervision imposed by common law, statute, ordinance, code or regulation and the local public entity or public employee is guilty of willful and wanton conduct in its failure to provide supervision proximately causing such injury.24 Thus, supervision immunity applies to three basic scenarios: (1) Where supervision is actually undertaken, there is immunity from negligence but not from willful and wanton conduct;

(2) Where the law requires supervision (a statute or code says supervision “shall” be provided), there is immunity from negligence but not from willful and wanton conduct for any failure to provide supervision; and (3) Where no supervision is provided and no law requires supervision, there is absolute and unconditional immunity for any failure to provide supervision. For the purpose of the immunity, “public property” is not limited to property owned by the particular public entity defendant, but rather extends to any public property where supervision is provided. For instance, supervision of a school athletic team at a separate park-owned facility does not waive the immunity.25 Public property, however, is specifically defined in the Act to include only property “owned or leased by a local public entity” and does not include “easements, encroachments and other property that are located on its property but that it does not own, possess or lease.”26 In a unique wrinkle, and as the definition of “local public entity” does not include the State or “any office, officer, department, division, bureau, board, commission, university or similar agency of the State,”27 courts have refrained from extending supervision immunity to public locations such as state parks.28 The term “supervision,” however, has been construed broadly so that the immunity does not require any particular degree of quality29 and includes direction, teaching, and to some degree active participation in an activity.30 For instance, the mere presence of a swim coach at a pool satisfies the definition of “supervision” under the act,31 as does a teacher who fails to identify a student

For the purpose of the immunity, “public property” is not limited to property owned by the particular public entity defendant, but rather extends to any public property where supervision is provided.

participating in a chemistry experiment without state mandated eye protection.32 Moreover, school employees who exercised some precautions to protect students from injury, even if those precautions were insufficient, are not guilty of willful and wanton conduct.33 Finally, the activity being supervised does not need to be within a park or scholastic setting, as supervision immunity has been applied to a variety of activities including regulatory supervision of a skydiving company,34 oversight of a private corporation providing security,35 or supervision of construction activities.36 Unless the law specifically requires supervision, Section 3-108(b) provides blanket immunity from either negligence or willful and wanton claims for any failure to provide supervision, or when only “passive oversight” exists. Additionally, mere ineffectiveness does not establish that a defendant was utterly indifferent or consciously disregarded the safety of others.37 Of particular interest, this immunity has been invoked frequently to immunize public entities from construction work-zone injuries in which the “supervision” provided by the public entity consisted only of loose oversight of the work or enforcement of contractual obligations.38

III. Discretionary Immunity Sections 2-109 and 2-201 of the Act confer immunity from liability to units of local government and their employees for the performance of discretionary functions.39 This discretionary immunity is one of the most significant protections afforded to local public entities and their employees under the Act.40 As such, an understanding of those parties discretionary immunity protects, and to what acts and omissions it applies, is essential to a robust defense of local public entities and their employees. The burden is on the local public entities and their employees to prove they are entitled to immunity under Sections 2-109 and 2-201.41 The immunities set forth in these sections are applied by the courts on a case-by-case basis42 and are construed strictly against government defendants asserting them.43 Section 2-109 provides that “[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.”44 Thus, the Act does not confer discretionary immunity to a unit of local government directly.45 Rather, it allows municipalities and other local public entities to shelter under the immunity granted to their employees by Section 2-201.46 — Continued on next page

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Section 2-201 immunizes local government employees from liability for both negligence and willful and wanton conduct.47 The section states: Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.48 Immunity under Section 2-201 is thus dependent upon both the type of position held by the subject employee and the acts carried out or omitted by the employee. Accordingly, courts use a two-part test to determine whether the employee may be granted discretionary immunity.49 The first prong focuses on the employee’s position and the second prong on the employee’s alleged acts and omissions. In order to assert discretionary immunity successfully under Section 2-201, and by extension, Section 2-109, a government defendant must satisfy both prongs of the test. a. First Prong: The Employee’s Position First, an employee may qualify for discretionary immunity “if he holds either a position involving the determination of policy or a position involving the exercise of discretion.”50 Generally, the higher an employee’s position in the relevant chain of command, the more likely it is that the position involves the determination of policy or exercise of discretion.51 However, courts interpret this language liberally and will consider

whether any government employee’s position involves the determination of policy or the exercise of discretion on a case-by-case basis. Thus, even general laborers charged to carry out seemingly mundane tasks, such as filling in potholes, can satisfy the first prong of Section 2-201 under the particular circumstances of a case, so long as some “personal judgment” is needed to execute the duties assigned to the position.52 b. Second Prong: The Employee’s Act or Omission The crucial question under Section 2-201 is whether the claim concerns a “discretionary policy determination.”53 For discretionary immunity to apply, the subject employee must have engaged in both the determination of policy and the exercise of discretion when performing the act or omission from which the plaintiff’s injury is alleged to have resulted.54 In no case will a local public body or employee receive discretionary immunity from liability for the performance of a “ministerial” task.55 c. Part (a): Whether the Act Involved a Policy Determination Relatively few cases trace the contours of “determining policy” as used in Section 2-201. In essence, policy determinations involve decisions that require the subject employee to utilize his or her particular expertise to balance competing interests and to make a judgment call as to what procedure, solution, or course of action will best serve each of those interests.56 While policy choices are commonly thought to be the province of executivelevel employees, such as school district administrators,57 courts have found that

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lower-level employees, such as teachers and coaches, also make many everyday decisions “determining policy” for the purposes of Section 2-201. 58 Indeed, a public employee of any level who considers available resources, time, efficiency, safety, or fiscal and work force constraints in the execution of his or her public duties can make a “policy determination” under Section 2-201.59 d. Part (b): Whether the Act Involved the Exercise of Discretion The decisive final step in the test requires the court to classify the act or omission giving rise to the complaint as either discretionary or ministerial in nature. Discretionary acts are those unique to a public office. 60 They are characterized by the exercise of personal deliberation and judgment in deciding how and in what manner the act should be performed or whether to perform the particular act in the first place.61 On the other hand, acts that an employee performs in a prescribed manner on a given set of facts, or in obedience to the mandate of legal authority, are ministerial in nature.62 Nevertheless, courts have found that this immunity applies to bar claims brought regarding the failure of school officials to discipline bullies despite the existence of an anti-bullying policy, finding that those acts or omissions constituted discretionary acts and policy determinations.63 The designation of acts as either discretionary or ministerial escapes precise formulation, however, and must be made by the court in light of the particular facts and circumstances of each case.64 For example, although repairs generally are ministerial acts for which local governments may be liable if negligently performed,65 courts have

[A]ppellate courts are willing to uphold trial court findings of discretion (and immunity) based on the “minutiae” of how local government employees complete even menial, everyday tasks for their employers, even when the results are admittedly harsh.

held that an eighth-grade shop teacher’s decision to remove the safety shield from a saw was a discretionary act,66 and that city workers’ decisions about filling potholes, involved the exercise of discretion.67 In sum, appellate courts are willing to uphold trial court findings of discretion (and immunity) based on the “minutiae” of how local government employees complete even menial, everyday tasks for their employers,68 even when the results are admittedly harsh.69 Illinois courts have generously interpreted the language in Section 2-201 in favor of finding discretionary immunity for local public entities and their employees. The burden to establish this immunity remains with government defendants, however.70 Consequently, counsel should take care to flesh out and introduce into evidence the intricacies and incidental choices inherent in the everyday duties executed by both executive-level policy makers and lower-level personnel, including teachers, coaches, and general laborers, when asserting discretionary immunity under Sections 2-109 and 2-201.71

IV. Adoption and Failure to Enforce a Law The Act recognizes that government employees are not perfect and need

immunity when failing to enforce an ordinance or law. Similarly, it furnishes protection for claims arising from the issuance or denial of permits and the institution of administrative proceedings. a. Failure to Adopt or Enforce a Law Local government72 units are granted immunity for any injury caused by adoption or failing to adopt or enforce any law. This protection has also been extended to government employees.73 This immunity further extends to such things as failure to inspect property,74 enforcement of a housing code,75 or enforcement of a property maintenance code.76 This immunity is absolute and without any exception for willful and wanton misconduct. 77 The Illinois Supreme Court confirmed complete protection in Village of Bloomingdale v. CDG Enterprises.78 There, a developer asserted that municipal officials secretly worked to deny the developer’s petition for rezoning and annexation so that they could steer the project to their “cronies.”79 The Illinois Supreme Court specifically held that there were no exceptions for corrupt or malicious motives to the immunity afforded by Sections 2-103 and 2-105.80 Additionally, these sections of the Tort Immunity Act apply to failure to

enforce issues. Where the employee fails to enforce an enactment or law, there is immunity. However, these particular sections do not apply to situations where an employee attempts to enforce a law and does so in a negligent or incompetent manner.81 In situations where there are accusations of an employee incompetently enforcing the law, a different section of the Act—Section 2-202—is triggered and no protection for willful and wanton misconduct is in place. b. Judicial or Administrative Proceedings From time to time, irate residents will take umbrage with ordinance prosecutions and other administrative proceedings and will file suit against government employees. Often these claims are attendant to claims of political targeting or other mischief. However, according to section 2-208, a public employee enjoys immunity from claims arising from the institution or prosecution of an administrative or judicial proceeding as long as the employee did not act maliciously and without probable cause.82 This immunity does not immunize public employees from the common law claim of malicious prosecution.83 Indeed, this provision will not immunize a public employee who acts maliciously, but malice alone does not infer an absence of probable cause. The Third District case of Knox County v. Midland Coal Co.84 provides an example. The county obtained a preliminary injunction to stop the strip mining of prime farmland to protect the county’s property tax base.85 The mining company successfully appealed the preliminary injunction, with the appellate court ruling that the county did not have jurisdiction — Continued on next page

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to obtain the injunctive relief until after it had exhausted all of its administrative remedies. The mining company then filed suit to recover the damages it suffered because of the county’s actions. The court held that the county had probable cause to seek the injunction and found in favor of the county.86 c. Issuance, Denial, Suspension, or Revocation of a Permit Suits are sometimes filed because applicants for local permits are denied. In the eyes of the applicants, the denial is without proper cause or blatantly unfair. Governmental entities 87 and public employees88 have broad immunity from claims relating to the issuance, denial, suspension, or revocation of a permit, or the failure or refusal to do the same. This immunity is absolute. Even in situations where a government employee has corrupt or malicious motives in making such a decision, immunity applies.89 Furthermore, this immunity does not distinguish between a ministerial act and an exercise of discretion, thus granting immunity to both types of acts. Doyle v. City of Marengo90 provides an example of this immunity. In Doyle, the plaintiffs purchased homes in a subdivision that had been previously designated a flood plain. The city issued occupancy permits for the homes, but failed to issue letters of map revision that would have removed the flood plain designation. As such, the plaintiffs were forced to purchase flood insurance. The plaintiffs sued the city, alleging that they suffered damages arising from the city’s negligent issuance of the occupancy permits before issuing letters of map revision. The city successfully moved for dismissal based on Section 2-104 immunity, which was upheld on

appeal, with the appellate court finding that there was no willful and wanton statutory exception. Interestingly, the court did suggest that an exception to this immunity might occur if there had been evidence of bad faith or malicious motives. Reading in such a “corrupt motives” exception into the statute, will be subject to further appellate scrutiny.91 Similarly, in Mack Industries, Ltd. v. Village of Dolton, Section 2-206 was found to provide immunity in a landlord’s case against the village and village manager for injuries caused by the failure to issue permits and certificates.92 This case pertained to notices of disconnection regarding water supply. Dismissal was affirmed on appeal based on this immunity.

V. Condition of Property Section 3-10293 is largely a codification of the common law duty of a local public entity to maintain its property.94 It does not provide a complete immunity to a local public entity for negligently maintaining its property,95 but rather defines the scope of a local public entity’s duty while simultaneously identifying the narrow circumstances under which the duty is inapplicable.96 a. Duty of Local Public Entity In a general sense, a local public entity owes the same duty that any landowner owes to persons using its land: the duty to exercise ordinary care to maintain its property in a reasonably safe condition.97 However, a local public entity owes this duty only to “intended and permitted” users of the property who are using it in a manner that is reasonably foreseeable.98 Importantly, a local public entity owes the duty of care only when

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the foreseeable use is both permitted and intended.99 Thus, the Act will apply to immunize a local public entity for injury arising from the condition of its property when the injured party was not an intended and permitted user of the property.100 In order to determine whether a particular use of government property was permitted and intended, the local public entity’s intent is controlling and the courts will look to the property itself to determine the intended use.101 This was examined recently in Pattullo-Banks v. City of Park.102 In that situation, whether a pedestrian was an intended user of a street where she was hit by a car was irrelevant to the determination of whether the city breached its duty to maintain its property by unreasonably piling snow on the sidewalk so as to make it unpassable. Rather, whether the pedestrian was an intended and permitted user was to be determined based upon the property for which the city was alleged to have breached its duty rather than the place where the injury occurred. Further, in making such a determination, the historical and customary use of the property is a relevant factor.103 Other factors will also be examined. For instance, to determine a municipality’s intent as to whether a pedestrian was a permitted and intended user of a street, it is necessary to look at pavement markings, signs and other physical manifestations of the intended use of the property.104 Whether a local public entity owed a duty of care is a matter of law to be determined by the court.105 b. Notice of Condition Required Even where a duty is owed to an intended and permitted user of the government property, Section 3-102 states:

[A] local public entity . . . shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.106 In order to establish actual notice, it is only necessary to establish that there was notice or knowledge of the dangerous condition itself, not the unsafe nature of the condition.107 As stated in Zameer v. City of Chicago, “notice” demands proof that the defendant had timely notice of the specific defect that caused the injury, not merely the general conditions of the area.108 Actual notice is imputed to a local public entity when one of its employees has actual knowledge of the condition.109 Section 3-102(b) of the Act provides two affirmative methods of proving that a local public entity did not have constructive notice.110 These methods are in the nature of affirmative defenses that will bar a plaintiff’s right to recover if properly raised and proved by the local public entity.111 In that regard, a local public entity does not have constructive notice if it establishes either: (1) The existence of the condition and its character of not being reasonably safe would not have been discovered by an inspection system that was reasonably adequate considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise to inform the public entity whether

Factors to be considered in determining if a public entity had constructive notice of a defective condition of its property are the length of time the condition existed and the conspicuity of the condition.

the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property; or (2) The public entity maintained and operated such an inspection system with due care and did not discover the condition.112 It has been held that a local public entity has constructive notice of a defective condition of its property where the defective condition has existed for such a length of time or, is so conspicuous or plainly visible that the local public entity and its agents should have known of the existence of the condition by exercising reasonable care and diligence.113 The question of whether a local public entity had constructive notice of a defective condition is usually for the trier of fact.114 However, it becomes a question of law when the evidence when viewed in the light most favorable to the plaintiff so overwhelmingly favors the defendant that no contrary verdict could ever stand.115 Factors to be considered in determining if a public entity had constructive notice of a defective condition of its property are the length of time the

condition existed and the conspicuity of the condition.116 Speculation is not permissible. The recent case Zameer v. City of Chicago is particularly useful for the defense bar.117 In Zameer, the plaintiff tripped on a height differential in the sidewalk. Judge Flanagan properly rejected the plaintiff’s suggestion that the notice element was satisfied merely by pointing out that there had been prior complaints regarding other sections of the sidewalk. In affirming summary judgment, the appellate court reiterated that the surrounding area is irrelevant and that the plaintiff must prove timely notice of the specific defect itself - a defect down the other end of the street holds no water.118 The burden of proof is an important issue to consider in regard to the determination of constructive notice. As one court observed, “[i]t is unclear whether notice of the unsafe condition is an element of the plaintiff’s prima facie case or only becomes an issue if lack of notice is raised as an affirmative defense.”119 The initial burden of demonstrating that the local public entity has constructive notice of the condition of its property is on the plaintiff, but a public entity seeking to base its immunity on one of the defined bases of lack of constructive notice will bear the burden of proving those facts.120 It must be raised as an affirmative defense or it is considered to be waived. — Continued on next page

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VI. Negligent Inspection As noted supra, a local government unit’s duty to inspect its own property is delineated by Section 3-102. However, sometimes lawsuits are filed against public entities arising out of inspections of private property. For instance, where a certificate of occupancy is granted, or a fire inspector reviews a building, tort immunity might be triggered. Section 2-207 provide: A public employee is not liable for an injury caused by his failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than that of the local public entity employing him, for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.121 Unlike Section 3-102, inadequate inspections of non-governmental property have absolute immunity.122 This complete protection is granted despite willful and wanton misconduct associated with such inspections.123 The Act allows for a broad definition of an “inspection” for the purposes of Section 2-207. In Hess v. Flores, plaintiff was injured by a fall from an apartment building staircase with a missing handrail.124 The plaintiff sued the City of Chicago for willful and wanton conduct and attempted to circumnavigate Section 2-207 by suggesting that the city inspector’s activities were outside the inspection process. The plaintiff argued that the city created an even more dangerous situation beyond the scope of a

mere inspection by directing the building owner to do specific work regarding the handrail, ordering the building owner to stop work during a time when the staircase lacked handrails, and ordering the owner to place yellow caution tape on the stairway in place of the handrail. The court rejected this theory, instead holding that Section 2-207 applies not only to negligent inspections, but also to willful and wanton conduct associated with such inspections. Consequently, even when a local government inspector has engaged in willful and wanton misconduct that is beyond the norm of an “inspection,” Section 2-207 provides protection.125

in writing, by computer or any other electronic transmission, or in a book or other form of library material.126 Notably, this immunity is absolute and has no willful and wanton exclusion. Perhaps more importantly to the practitioner, Section 2-107 immunity is regularly granted at the pleading stage pursuant to a Section 2-619 motion to dismiss.127 Defamation immunity has provided broad protection to local government entities in a variety of settings and circumstance. For instance, a school bus

While the Tort Immunity Act’s protection for defamation is reserved for the local public entity, the common law further provides protection from defamation claims for the public employee. The key consideration is whether the employee is acting within the scope of his or her official capacity, as opposed to a personal capacity.

VII. Defamation and Misrepresentation Immunity One of the broadest immunities afforded local government entities under the Tort Immunity Act is immunity from defamatory statements made by a public employee. Section 2-107 of the Tort Immunity Act states as follows: A local public entity is not liable for injury caused by any action of its employees that is libelous or slanderous or for the provision of information either orally,

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driver who was fired after a teacher assistant alleged poor work performance,128 or a police officer who was fired after a former colleague on another force incorrectly stated he was suspended in his previous job.129 The immunity has also been provided for statements read into the record, and broadcast over the internet and television.130 In a wholly separate context, federal courts have found defamation immunity when a village clerk sent a certified letter that a plaintiff “has failed to perform one or more of the provisions of the ordinance for the Subdivision and Platting of Land”.131

While the Tort Immunity Act’s protection for defamation is reserved for the local public entity, the common law further provides protection from defamation claims for the public employee. The key consideration is whether the employee is acting within the scope of his or her official capacity, as opposed to a personal capacity.132 For example, members of a school or school board making allegedly defamatory statements about a teacher to parents would be acting within the scope of their official capacity.133 However, this can be a very narrow path to navigate as frequently these statements toe the line between the official and personal capacity of the speaker. For example, a female police officer who made complaints to both her superiors and fellow officers was provided immunity for statements made “further up the chain of command” but was not granted absolute immunity for those statements made to other officers on the force.134 The Act also provides immunity for some misrepresentations or information provided pursuant to Section 2-210.135 Unlike the statutory immunity for defamation, however, this immunity only applies to negligent misrepresentations, and not willful and wanton misrepresentations. 136 However, the much broader protection found in this section is with the provision of information by a public employee. Section 2-210 states as follows: A public employee acting in the scope of his employment is not liable for an injury caused by his negligent misrepresentation or the provision of information either orally, in writing, by computer or any other electronic

transmission, or in a book or other form of library material.137 The Appellate Court, First District has made it clear that the “or” in the text of this section is “disjunctive” meaning a wholly different alternative to the text’s first clause.138 This is important, as there is no negligence modifier on the provision of information clause. Thus, a public employee acting within the scope of his or her employment is immune from any injury caused by the provision of information—no matter how that information is published. Local government entities are well protected for actions against it for allegedly defamatory statements. Perhaps more importantly, the case law generally suggests that such actions should be dismissed at the pleading stage in both federal and state venues. Less clear is the immunity provided to individual public employees, particularly in their individual capacity. This is where a careful reading of provision of information immunity found in Section 210, as well as an understanding of the common law privileges associated with official acts are necessary.

VIII. Recreational Property Immunity A cause of action sounding in negligence against a public entity or public employee for a failure to maintain equipment or any other action based upon the condition of the public-owned property, potentially implicates Section 3-106 of the Act. This provision holds: Neither a local public entity nor a public employee is liable for an injury where the liability

is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.139 The initial question is whether the property is “recreational” property. Whether public property qualifies as “recreational property” under Section 3-106 is determined by its nature, intended use, and past use. The primary purpose of the public property, however, does not have to be recreational for it to qualify as “recreational property.” The public property may be used for a variety of purposes, not just recreational activities, and still benefit from the immunity provided under Section 3-106.140 A less understood concept, but of equal importance is the nature of the property itself. Traditionally this provision of the Act was applied primarily to actions involving real property. This was error, and unnecessarily limited the scope of this immunity. A review of the relevant case law makes clear that Section 3-106 does not amend, rather it incorporates the definition of “public property” found in 745 ILCS 10/3-101, which states: As used in this Article unless the context otherwise requires “property of a local public entity” and “public property” mean real or personal property owned or leased by a local — Continued on next page

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public entity, but do not include easements, encroachments and other property that are located on its property but that it does not own, possess or lease. (emphasis added). Recently, the Illinois Supreme Court rejected a narrow application of this provision by highlighting the holding in Grundy v. Lincoln Park Zoo141, as follows: In Grundy, after examining this court’s opinions in McCuen, Sylvester, and Rexroad v. City of Springfield, 207 Ill.2d 33, 277 Ill.Dec. 674, 796 N.E.2d 1040 (2003), the panel stated: ‘These three decisions leave little doubt that the Supreme Court has understood, if not outright announced, that section 3–106 immunity extends to injuries caused by the condition of movable personal property, as in McCuen, or by movable items on real property, as in Sylvester….’ We agree with this assessment of our prior opinions, and accordingly find, to the extent that Stein contradicts this conclusion, it is overruled.”142 Thus, once it is determined that the property at issue, be it real or personal property, was used for a recreational purpose, it is arguable that any action for negligence is barred.

IX. Hazardous Recreational Immunity Section 3-109 of the Act immunized local public entities and employees as follows: Neither a local public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity.143 The statute itself offers two paths to identify what type of activity is a “hazardous recreational activity.” Subsection (b) of the statute defines it as any activity that creates a “substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator.” Whereas subsection (b)(1)-(3) lists a variety of recreational events which are by definition to be considered hazardous, including: skydiving, surfing, animal racing, downhill skiing, rock climbing, pistol or rifle shooting, and importantly “body contact sports.”144 Generally, the list of activities in subsection (b) are only activities that the courts have qualified as “hazardous recreational activities.” For example, in Grandalski ex rel. Grandalski v. Lyons Tp. High School Dist. 204145, the First District affirmed granting

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a motion to dismiss based upon various immunity statutes. In Grandalski, the plaintiff was injured when she fell on her head while performing a gymnastics maneuver during a physical education class in high school. The plaintiff argued that the school district should be liable because the gymnastics activity was a hazardous recreational activity. In discussing whether plaintiff’s participation in the physical education class was a recreational activity, the court stated as follows: Even if we were to conclude the activity here was “recreational,” it was not “hazardous recreational activity” under section 3-109 of the Tort Immunity Act. Section 3-109 provides, in pertinent part, as follows: “(b) As used in this Section, ‘hazardous recreational activity’ means a recreational activity conducted on property of a local public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator.” A basic gymnastics class is not the type of activity that falls under section 3-109.146 To distinguish a “hazardous recreational activity” from a simply recreational activity the focus is whether the risk is a feature of the activity and not an unintended hazard made possible by participating in the activity. For example, a skydiver knows that he or she will fall from great height and impact the ground—this risk is the feature of the activity. Section 3-109 immunity is infrequently litigated, which is a good thing as once triggered I it can control or limit other immunities.147

X. Police Services Under the Act, a public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.148 Whether a public employee or entity’s acts constitute willful and wanton conduct depends on the facts of the particular case. Proof that the conduct is willful and wanton requires a demonstration that it shows an “utter indifference to” or “conscious disregard for” the safety of the person that they are engaged with at the time of the conduct or prior thereto.149 There are, however, certain public employees who, generally, enjoy immunity from liability regardless of their state of mind when acting in certain circumstances.150 These immunities are focused on various activities relating to police protection and detention and corrections functions. Section 2-202 does not provide an exception to the immunities provided in other sections of the Act, and will not govern where other, more specific, immunities apply.151 a. Enhanced Immunity: Police Protection Services Under Section 4-102 of the Act,152 local public entities and public employees enjoy absolute immunity from liability for any failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for any failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals.153 This immunity is not waived by a contract for private security service, but cannot

be transferred to a non-public entity or employee.154 This immunity, however, does not allow police officers to engage in any conduct while performing police services. Indeed, this provision does not bar claims premised on a public entity’s or a public employee’s willful and wanton misconduct in the actual execution and enforcement of the law.155 The primary issue in most of these cases is whether the defendant provided police services.156 Thereafter, issues involving the degree of control exerted by the police,157 the context in which the police are acting,158 or whether public security personnel may provide “police services,” or any combination of those scenarios, will arise and complicate whether the immunity in this section will insulate the public employee, the public entity, or both, from claims for liability. Immunity from liability for failure to establish a police department or otherwise provide police protection service also applies to local public entities such as boards of education.159  In Albert v. Bd. of Educ.,160 the court held that the board of education had no duty to provide police-type protection to students after school hours, off school grounds, and when there was no school-supervised activity taking place. In certain circumstances where a public employee or entity is charged with a failure to provide police protection services, the absolute immunity found in Section 4-102 might not operate completely. From time to time, the express terms of one statute might conflict with the language of another. Under Illinois law, “when the plain language of one statute apparently conflicts with the plain language of another statute, we must resort to other means in determining the legislature’s intent. Where two statutes

conflict, [the court] will attempt to construe them together, in pari materia, where such an interpretation is reasonable.”161 The Illinois Supreme Court has held that there is no conflict between the Illinois Vehicle Code162 and the Tort Immunity Act, reasoning that the Vehicle Code extends certain privileges to both public and private employees driving emergency vehicles while the Tort Immunity Act is more narrowly focused and applied only to public employees and their employers.163 However, such a conflict exists between Section 4-102 of the Tort Immunity Act and Section 305 of the Illinois Domestic Violence Act of 1986.164 Under Illinois law, the Domestic Violence Act limits the immunity a law enforcement officer enjoys in the context of a domestic violence case. The Domestic Violence Act provides immunity similar to that set forth in Section 2-202 of the Illinois Tort Immunity Act as opposed to the absolute immunity for the same public employees under Section 4-102 of the Tort Immunity Act.165 The rationale expressed by the courts is that: (1) the express language of Section 305 of the Domestic Violence Act is more specific than the broad immunities of the Act; and (2) because the legislature enacted the Domestic Violence Act after the Act, the legislature intended the more recent Act to control.166 Thus, one must be careful when analyzing whether there is any other legislation governing the specific police protection services involved in the case that could limit the absolute immunity normally afforded by Section 4-102.

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b. Enhanced Immunity: Jail, Detention or Correctional Facility Under Section 4-103 of the Act, local government entities and their employees are also immune from liability for failure to provide a jail, detention, or correctional facility, or if such facility is provided, for failure to provide sufficient equipment, personnel, supervision, or facilities therein. Nothing in Section 4-103 requires the periodic inspection of prisoners.167 The Act is clear that there can be no liability for a public employee or entity who makes a knowing decision to forego establishing a jail, detention, or correctional facility. In those circumstances where a jail, detention, or correctional facility exists, then neither a public employee nor a public entity can be liable for failure to provide sufficient equipment, personnel, supervision, or facilities therein. There is no exception from the operation of the absolute immunity of this section even if a fact-finder determines that a public employee acted with willful and wanton intent.168

XI. Fire and Emergency Services Under the Act, local government entities are immune from the failure to establish a fire department, fire protection, rescue and other emergency services.169 If established, local public entities and their employees are immune from the failure to suppress or contain a fire, and are immune from failure to provide or maintain sufficient personnel, equipment, or other fire protection facilities.170 Local government entities and their employees are also immune from liability for an injury caused by the negligent operation (but not the

willful and wanton operation) of a motor vehicle, including fire trucks and rescue vehicles, when responding to an emergency call.171 The general policy behind the fire and emergency services sections of the Act is to “shield emergency responders from personal liability for decisions made and actions taken while responding to an emergency.”172 The theory is that “if the operator is haunted by the possibility of facing devastating personal liability for actions taken in the course of responding to an emergency, employees’ performance will be hampered.”173 Responding to an Emergency Although a covered employee is immune from claims of negligence in responding to an emergency,174 the term “emergency” is not defined by the Act. Illinois courts, however, use the common definition of emergency, which is an “urgent need for assistance or relief” or as “a situation in which there is a high probability of death or serious injury to an individual or significant property loss and action by an Emergency Vehicle operator may reduce the seriousness of the situation.”175 A public employee is protected by this immunity even if the employee is en route to the fire station or if the alarm turned out to be false when the injury occurs.176 a. Willful and Wanton Conduct in Light of Fire and Emergency Services As stated above, whether a public entity’s acts or omissions constitute willful and wanton conduct depends on the facts of the particular case.177 To prove that conduct is willful and wanton, a plaintiff must demonstrate that the acts

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and omissions at issue show an “utter indifference” or “conscious disregard” for safety.178 Unfortunately, however, there are no definitive actions an emergency vehicle operator can take to conclusively prevent a finding of willful and wanton disregard for safety.179 Rather, Illinois law remains unsettled as to what actions taken by an emergency vehicle driver (for example, flashing the vehicle’s lights, sounding its sirens, and slowing the vehicle at an intersection) tend to show a driver did not act with a willful and wanton disregard for safety, and is thus entitled to immunity. Illinois courts have held that the failure to activate emergency equipment does not alone constitute willful and wanton conduct, nor does driving at an excessive rate of speed.180

XII. Medical Care for Prisoners Pursuant to public policy, jailers owe a general duty of care to prisoners in Illinois. 181 Jailers are required to “exercise ordinary and reasonable care for the preservation of their prisoner’s health and life under the circumstances of the particular case.”182 The courts’ interpretation of the Act is consistent with this general duty.183 Section 4-105 of provides: Neither a local public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but this Section shall not apply where the employee, acting within the scope of his employment, knows from his observation of conditions that the prisoner is

in need of immediate medical care and, through willful and wanton conduct, fails to take reasonable action to summon medical care. Nothing in this section requires the periodic inspection of prisoners.184 This section immunizes local public entities and employees from negligence actions. For example, in Cooper v. Office of Sheriff of Will County, Will County Sheriff’s deputies arrested decedent Patrick Cooper and transferred him to the general inmate population of the Will County Jail to await trial.185 The deputies were aware that Cooper suffered from asthma that required medication and that Cooper had suffered an asthma attack in the past that required inhaler medication. On July 7, 2003, the decedent suffered a serious asthma attack that required immediate medical attention. Other inmates informed the deputy defendants that Cooper needed medical attention, but defendants failed to provide timely care, and Cooper died.186 The Estate of Cooper then sued the deputies. In ruling on the defendants’ motion to dismiss, the district court found that Section 4-105 immunized defendants from claims, alleging that defendants negligently failed to provide the decedent with timely medical treatment. The district court dismissed those claims that were based on negligence.187 The district court found that Section 4-105 did not immunize the defendants from claims that were based on willful and wanton conduct.188 To avoid the immunity in Section 4-105, plaintiffs must prove that jailers were willful and wanton when they failed to take reasonable action to summon medical care after observing that the prisoner is in need of immediate medical

“Deliberate indifference is a high standard requiring [the detainee] to prove that the defendant [was] aware of the facts from which a substantial risk of serious harm could be inferred and that [the defendant] actually drew the inference.” This requires “evidence that the official was aware of the risk and consciously disregarded it nonetheless.” care. The willful and wanton standard is “remarkably similar” to the deliberate indifference standard used to analyze alleged violations of the Fourteenth and Eighth Amendment under 42 U.S.C. § 1983.189 Under those circumstances, detainees have the right to receive reasonable medical treatment for a serious injury or medical need.190 “Deliberate indifference is a high standard requiring [the detainee] to prove that the defendant [was] aware of the facts from which a substantial risk of serious harm could be inferred and that [the defendant] actually drew the inference.”191 This requires “evidence that the official was aware of the risk and consciously disregarded it nonetheless.”192 A correctional official cannot be found liable “unless the official knows of and disregards an excessive risk to inmate health or safety.”193 Detainees “are not entitled to a specific type of treatment, or even the best care, only reasonable measures to prevent a substantial risk of serious harm.”194 “Mere dissatisfaction or disagreement with a course of treatment is generally insufficient; [the courts] will defer to a medical professional’s treatment decision unless no minimally competent professional would have so responded under those circumstances.”195

“Courts defer to a physician’s treatment decisions because there is not one proper way to practice medicine in a prison.”196 Consequently, changing the type of treatment that an inmate receives does not amount to deliberate indifference simply because the inmate disagrees with it.197 In the case of supervisory officials, deliberate indifference requires a showing of direct responsibility for improper conduct; the official must have caused or participated in the alleged constitutional deprivation.198 Such responsibility means that the unconstitutional conduct occurred either at the direction of the supervisory official or with his knowledge and approval.199 Thus, a plaintiff must present facts demonstrating the supervisor’s personal involvement in the allegedly unconstitutional activities.200 Federal courts also consider the “professional judgment rule.”201 A decision made by a medical professional is “presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards, as to demonstrate that the person responsible actually did not base the decision on such a judgment.”202 The corollary to — Continued on next page

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the professional judgment standard is that non-medical correctional officials are entitled to defer to the judgment of medical professionals on questions of prisoner medical care. 203 It is not deliberate indifference for a correctional official to defer to the medical judgment of the doctor or nurse providing medical treatment to a prisoner.204 When a prisoner is receiving care from a medical professional, jail personnel are justified in believing that the prisoner is receiving adequate treatment from a capable professional. 205 No Illinois appellate courts have addressed the professional judgment rule in the context of Section 4-105. Presumably, public employees accused of being willful and wanton to a detainee’s medical needs could defend against such claims by establishing that they relied on the professional judgments of medical personnel. Ultimately, detainees suing for insufficient medical care have an uphill

battle. Section 4-105 immunizes the local public entity and the public employee against negligence claims. To have any chance at establishing a state law claim in Illinois, the detainee must prove that the public employee was aware of a medical need and willful and wanton in ignoring that medical need. Similarly, in federal court, the detainee must prove that the public employee was aware of a serious medical need and consciously disregarded that need. Medical needs that are addressed by a jail nurse or doctor further insulate the jailer through the professional judgment rule. Conclusion Local public entities lie at an intersection of two conflicting policy desires: the need for public services and the want to reduce the local tax burden. Unlike private persons or corporations, local public entities are often unable to reduce

risk by refusing to engage in certain acts. The need for public goods and services, such as roads, sidewalks, police and fire protection, schools, and parks, do not diminish in poor economic times nor can they be continually maintained even in the best of times. The purpose of the Tort Immunity Act is to shield local public entities from the fallout of this conflict as they provide necessary services within the constraints placed upon them by the taxpayer. As such, the importance of the Tort Immunity Act to the executive and legislative branches of government should not be diminished. Any erosion in the effectiveness of the provisions of the Tort Immunity Act through the judicial process is necessarily an erosion of the ability of the executive and legislative branches to govern. It is primarily through the Tort Immunity Act that the taxpayer is protected from the policy choices required by self-governance.

(Endnotes) Bielema v. River Bend Cmty. Sch. Dist. No. 2, 2013 IL App (3d) 120808, ¶ 12; Winfrey v. Chi. Park Dist., 274 Ill. App. 3d 939, 944 (1st Dist. 1995).

Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq.; Zameer v. City of Chicago, 2013 IL App (1st) 120198, ¶ 14.

9

Vesey v. Chi. Hous. Auth., 145 Ill. 2d 404, 412 (1991).

10

3

Molitor v. Kaneland Cmty. Unit Dist. No. 302, 18 Ill. 2d 11 (1959).

11

4

12

1

2

Vesey, 145 Ill. 2d at 412.

Kirschbaum v. Vill. of Homer Glen, 365 Ill. App. 3d 486, 492 (3d Dist. 2006). 5

745 ILCS 10/1-101.1.

6

Callaghan v. Vill. of Clarendon Hills, 401 Ill. App. 3d 287, 291 (2d Dist. 2010). 7

Geimer v. Chi. Park Dist., 272 Ill. App. 3d 629, 637 (1st Dist. 1995). Barr v. Cunningham, 2017 IL 120751, ¶ 15. Hubble v. Bi-State Dev. Agency of the Ill.Mo. Metro. Dist., 238 Ill. 2d 262, 270 (2010) (finding that a management company for a low-income public housing development met the definition of a local public entity).

See, e.g., Johnson v. Decatur Park Dist., 301 Ill. App. 3d 798 (4th Dist. 1998). 15

Barnes v. Chi. Hous. Auth., 326 Ill. App. 3d 710, 726 (1st Dist. 2001). 16

Hubble, 238 Ill. 2d at 269–73.

17

745 ILCS 10/8-101.

18

Id. § 2-102.

19

Id. § 2-213.

20

Id. § 2-302.

21

Id.

22

745 ILCS 10/1-206 (emphasis added).

23

Hubble, 238 Ill. 2d at 270.

24

13

14

745 ILCS 10/1-210.

8

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745 ILCS 10/3-108. Id.

See Castenada v. Cmty. Sch. Dist. Unit No. 200, 226 Ill. App. 3d 514, 517 (2d Dist. 1992). 25

745 ILCS 10/2-109.

44

Id. § 2-109.

45

Id. § 2-201.

26

745 ILCS 10/3-101.

46

27

Id. § 1-206.

47

See Stiff v. E. Ill. Area of Special Educ., 251 Ill. App. 3d 859, 861–62 (4th Dist. 1993).

Hascall v. Williams, 2013 IL App (4th) 121131, ¶¶ 35–38.

28

Barnett v. Zion Park Dist., 171 Ill. 2d 378, 392 (1996). 29

Longfellow by Longfellow v. Corey, 286 Ill. App. 3d 366, 370 (4th Dist. 1997). 30

Dixon v. Chi. Bd. of Educ., 304 Ill. App. 3d 744, 749 (1st Dist. 1999).

745 ILCS 10/2-201.

48

Id.

59

Harinek v. 161 N. Clark St. Ltd. P’ship, 181 Ill. 2d 335, 341 (1998). 49

Harinek, 181 Ill. 2d at 341 (emphasis in original). 50

Hill v. Galesburg Cmty. Unit Sch. Dist. 205, 346 Ill. App. 3d 515, 521 (3d Dist. 2004). 33

Barr, 2017 IL 120751, ¶ 18.

Spangenberg v. Verner, 321 Ill. App. 3d 429, 432 (5th Dist. 2001). 34

35

Barnes,326 Ill. App. 3d at 722-724.

Epstein v. Chi. Bd. of Educ., 178 Ill. 2d 370, 382 (1997). 36

Shwachman v. Northfield Tp. High Sch. Dist. 225, 2016 IL App (1st) 143865-U, ¶ 41. 37

Moorehead v. Metro. Water Reclamation Dist. of Greater Chi., 322 Ill. App. 3d 635, 640 (1st Dist. 2001). 38

39

745 ILCS 10/2-109; 2-201.

Arteman v. Clinton Cmty. Unit Sch. Dist. No. 15, 198 Ill. 2d 475, 484 (2002). 40

Van Meter v. Darien Park Dist., 207 Ill. 2d 359, 370 (2003). 41

Snyder v. Curran Twp., 167 Ill. 2d 466, 474 (1995). 42

Gutstein v. City of Evanston, 402 Ill. App. 3d 610, 627 (1st Dist. 2010). 43

Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 395 (1st Dist. 2000) (“The degree to which a pothole should be prepared, and specifically how much loose asphalt and moisture will be removed, is a matter of a worker’s personal judgment, and encompassed within that judgment are policy considerations of time and resource allocation during a given workday.”). Monson v. City of Danville, 2017 IL App (4th) 160593-U, ¶ 34 (finding public works director used his discretion to determine which portions of a sidewalk were in need of repair or not). 52

Courson ex rel. Courson v. Danville Sch. Dist. No. 118, 333 Ill. App. 3d 86, 88 (4th Dist. 2002) (citing Arteman, 198 Ill. 2d at 487). 53

Harinek, 181 Ill. 2d at 341.

54

Morrissey v. City of Chicago, 334 Ill. App. 3d 251, 257 (1st Dist. 2002); In re Chi. Flood Litig., 176 Ill. 2d 179, 194 (1997). 55

Harinek, 181 Ill. 2d at 342 (quoting West v. Kirkham, 147 Ill. 2d 1, 11 (1992)); Wrobel, 318 Ill. App. 3d at 394 (quoting Harrison v. Hardin Cnty. Cmty. Unit Sch. Dist. No. 1, 313 Ill. App. 3d 702, 706 (5th Dist. 2000)). 56

Arteman, 198 Ill. 2d at 487 (school district’s decision not to provide protective equipment for physical education class was a policy decision). 57

Id.

60

Trtanj v. City of Granite City, 379 Ill. App. 3d 795, 803 (5th Dist. 2008). 61

Snyder, 167 Ill. 2d at 474 (a township’s placement of a warning sign was a ministerial act because regulations and statutes controlled the sign’s placement). 62

See id. at 342–43.

51

31

32

See Courson ex rel. Courson, 333 Ill. App. 3d at 90 (finding that a shop teacher’s operation of a table saw without a safety guard constituted a “discretionary policy determination” because he had to balance safety interests against resources and skill of students to determine how best to do his job.). 58

Mulvey v. Carl Sandburg High Sch., 2016 IL App (1st) 151616, ¶ 47. 63

Trtanj, 379 Ill. App. 3d at 804.

64

Morrissey, 334 Ill. App. 3d at 256-257.

65

Courson ex rel. Courson, 333 Ill. App. 3d at 91. 66

Wrobel, 318 Ill. App. 3d at 395.

67

Gutstein, 402 Ill. App. 3d at 626 (discussing Wrobel, 318 Ill. App. 3d at 395). 68

See Hascall, 2013 IL App (4th) 121131, ¶ 38 (finding that Section 2-201 immunized a school district, superintendent, and principal from liability for injuries resulting from alleged willful and wanton failures to respond to student bullying in school despite the “seeming harshness of the result.”). 69

Van Meter, 207 Ill. 2d at 370.

70

See Gutstein, 402 Ill. App. 3d at 629 (holding that the city failed to carry its burden to prove discretionary immunity where the city did not present evidence at trial that could allow the court to consider whether a city employee exercised discretion by choosing which materials to use when regrading depressions in an alley). 71

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See 745 ILCS 10/2-103 (“A local public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.”); Weiler v. Village of Oak Lawn, 86 F. Supp.3d 874 (N.D. Ill. 2015); Donovan v. Community Unit School Dist. 303, 2015 IL App. (2d) 140704 (immunity was not limited to discretionary acts and therefore parents’ action against district asserting violations of No Child Left Behind Act and School Code stemming from reorganization of two schools was barred).

his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, unless he acts maliciously and without probable cause.”) to the elements of common law malicious prosecution in Ross v. Mauro Chevrolet, 369 Ill. App. 3d 794, 801 (1st Dist. 2006).

85

Knox Cnty., 265 Ill. App. 3d at 783.

See 745 ILCS 10/2-205 (“A public employee is not liable for an injury caused by his adoption of, or failure to adopt, an enactment, or by his failure to enforce any law.”); Mahoney Grease Service, Inc. v. City of Joliet, 85 Ill. App. 3d 578, 581 (3d Dist. 1980) (legislators cannot be held personally responsible based upon their vote in the exercise of discretion vested in them by virtue of their office).

86

Id.

72

73

Ware v. City of Chicago, 375 Ill. App. 3d 574 (1st Dist. 2007). 74

Stigler v. City of Chicago, 48 Ill. 2d 20 (1971). 75

Pouk v. Vill. of Romeoville, 405 Ill. App. 3d 194 (3d Dist. 2010). 76

77

745 ILCS 10/2-103; id. § 2-205.

Vill. of Bloomingdale v. CDG Enters., 196 Ill. 2d 484 (2001). 78

Knox Cnty. v. Midland Coal Co., 265 Ill. App. 3d 782 (3d Dist. 1994).

745 ILCS 10/2-104 (“A local public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization where the entity or its employee is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.”). 87

Id. at 493-494.

Compare this immunity to that set forth in 745 ILCS 10/2-202 (“A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.”). 81

82

745 ILCS 10/2-208.

Compare 745 ILCS 10/2-208 (“A public employee is not liable for injury caused by 83

Boub v. Twp. of Wayne, 183 Ill. 2d 520 (1998). 96

Id. § 2-206 (“A public employee is not liable for an injury caused by his issuance, denial, suspension or revocation of or by his failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization where he is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.”).

Bowman v. Chicago Park Dist. 2014 IL App. (1st) 132122, ¶ 49 (an intended user is by definition a permitted user, however, a permitted user is not necessarily an intended user); Callaghan, 401 Ill. App. 3d 287, 291 (2d Dist. 2010). 97

Washington, 188 Ill. 2d at 239; Gutstein, 402 Ill. App. 3d at 616. 98

Walker v. Chi. Hous. Auth., 2015 IL App. (1st) 133788, ¶ 73; Diefendorf v. City of Peoria, 308 Ill. App. 3d 465, 468 (3d Dist. 1999). 99

Berz v. City of Evanston, 2013 IL App (1st) 123763, ¶ 10. 100

88

Vill. of Bloomingdale, 196 Ill. 2d at 495496. Doyle v. City of Marengo, 303 Ill. App. 3d 831 (2d Dist. 1999). 90

80

Catberro v. Naperville Sch. Dist. No. 203, 317 Ill. App. 3d 150 (2d Dist. 2000). 95

84

89

Vill. of Bloomingdale, 196 Ill. 2d at 487488. 79

Inc., 317 Ill. App. 3d 1104,1112 (1st Dist. 2000).

91

Doyle, 303 Ill. App. 3d at 831.

Mack Indus., Ltd. v. Vill. of Dolton, 2015 IL App (1st) 133620. 92

93

745 ILCS 10/3-102.

Foust v. Forest Preserve Dist. of Cook County, 2016 IL App. (1st) 160873, ¶ 24; Washington v. City of Chi., 188 Ill. 2d 235, 239 (1999); Anderson v. Alberto-Culver USA, 94

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DeMambro v. City of Springfield, 2013 IL App (4th) 120957, ¶¶ 15–20 (discussing “intended and permitted” use of streets); Dunet v. Simmons, 2013 IL App (1st) 120603, ¶ 28. 101

Patullo-Banks v. City of Park, 2014 IL App (1st) 132856. 102

Brooks v. City of Peoria, 305 Ill. App. 3d 806, 809 (3d Dist. 1999). 103

104

Dunet, 2013 IL App (1st) 120603, ¶ 28.

Marshall by Marshall v. City of Centralia, 143 Ill. 2d 1, 5 (1991). 105

106

745 ILCS 10/3-102.

Glass v. City of Chi., 323 Ill. App. 3d 158, 163 (1st Dist. 2001). 107

108

Zameer, 2013 IL App (1st) 120198, ¶ 23.

109

Glass, 323 Ill. App. 3d at 163.

110

745 ILCS 10/3-102(b).

Bubb v. Springfield Sch. Dist. 186, 167 Ill. 2d 372, 378 (1995). 111

745 ILCS 10/3-102(b)(1)–(2).

112

Union Pac. R.R. Co. v. Vill. of S. Barrington, 958 F. Supp. 1285, 1289 (N.D. Ill. 1997). 131

Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 617 (7th Cir. 2001).

152

745 ILCS 10/4-102.

Prough v. Madison Cnty., 2013 IL App (5th) 110146, ¶ 23. 153

132

Perfetti v. Marion Cnty., 2013 IL App (5th) 110489, ¶19. 113

Palermo v. City of Chicago Heights, 2 Ill. App. 3d 1004, 1008 (1st Dist. 1971); see also Coultas v. City of Winchester, 208 Ill. App. 3d 238, 240-241 (4th Dist. 1991). 114

Krivokuca v City of Chi., 2017 IL App (1st) 152397, ¶ 51. 115

Zameer, 2013 IL App (1st) 120198, ¶ 15; Mtengule v. City of Chicago, 257 Ill. App. 3d 323, 329 (1st Dist. 1993). 116

Zameer, 2013 IL App (1st) 120198.

133

Horwitz, 260 F.3d at 617.

Anderson v. Beach, 386 Ill. App. 3d 246, 250 (1st Dist. 2008) (but note a conditional privilege may apply).

137

745 ILCS 10/2-210.

138

Goldberg, 409 Ill. App. 3d at 111.

157

139

745 ILCS 10/3-106.

140

Bubb, 167 Ill. 2d at 376-377.

135

745 ILCS 10/2-210.

Jane Doe-3 v. McLean Cty. Unit Dist. No. 5 Bd. of Dirs., 2012 IL 112479, ¶ 43. 136

119

Vesey, 145 Ill. 2d 404 (1991), 745 ILCS 10/3-102(b)(1)-(2); Krivokuca, 2017 IL App (1st) 152396, ¶ 51. 120

745 ILCS 10/2-207.

121

Hess v. Flores, 408 Ill. App. 3d 631, 643 (1st Dist. 2011). 122

Ware, 375 Ill. App. 3d at 582-583.

Grundy v. Lincoln Park Zoo, 2011 IL App (1st) 102686. 141

Moore v. Chi. Park Dist., 2012 IL 112788, ¶ 21. 142

Hess, 408 Ill. App. 3d 631. Id. at 647–49.

See, e.g., Goldberg v. Brooks, 409 Ill. App. 3d 106 (1st Dist. 2011). Goldberg, 409 Ill.App.3d at 107.

745 ILCS 10/1-206.

144

745 ILCS 10/3-109(b)(1)-(3).

160

2014 IL App (1st) 123544, ¶ 54-56.

161

Moore, 219 Ill. 2d at 479.

162

625 ILCS 5/1-100 et seq.

Grandalski ex rel. Grandalski v. Lyons Tp. High School Dist. 204, 305 Ill. App. 3d 1, (1st Dist. 1999). 145

146

Grandalski, 305 Ill.App.3d at 11-12.

See Murray v. Chi. Youth Ctr., 224 Ill. 2d 213 (2007). 147

Friedman v. Moore, 2014 IL App (2d) 130671-U, ¶ 5.

164

750 ILCS 60/305.

745 ILCS 10/2-202.

165

Moore, 219 Ill. 2d at 488–90.

149

745 ILCS 10/2-210.

166

Id. at 480.

150

745 ILCS 10/2-202.

167

745 ILCS 10/4-103.

129

130

Harris v. Thompson, 2012 IL 112525, ¶ 25. 163

148

128

King v. City of Chi., 324 Ill. App. 3d 856, 858, (1st Dist. 2001).

DeSmet ex. rel. Estate of Hays v. Cnty. of Rock Island, 219 Ill. 2d 497 (2006) (finding “police protective services” implicated where police are called upon to locate a missing person) (superseded by statute as stated in Murray , 224 Ill.2d 213). 158

159

126

127

Anthony v. City of Chi., 382 Ill. App. 3d 983 (1st Dist. 2008) (involving police at the scene of a nightclub when patrons were trampled in a stairwell).

745 ILCS 10/3-109(a).

125

745 ILCS 10/2-107.

156

143

123

124

A.R. ex. rel. M.R. v. Chi. Bd. of Educ., 311 Ill. App. 3d 29, 35 (1st Dist. 1999) (overruled on other grounds). 155

Doe ex rel. Ortega-Piron v. Chi. Bd. of Educ., 213 Ill. 2d 19 (2004); see also Betts v. City of Chi., 2013 IL App (1st) 123653, ¶¶ 27–29 (overturning the trial court’s dismissal of a negligence claim against a police officer because the officer’s affidavit did not set forth sufficient facts to allow the court to conclude that he was executing or enforcing the law when he crashed into the plaintiff’s car).

118

Tracy v. Vill. of Lombard, 116 Ill. App. 3d 563, 572 (2d Dist. 1983).

745 ILCS 10/4-102.

134

117

Id. at ¶ 23.

154

Hess, 408 Ill. App. 3d at 644; see also Ries v. City of Chi., 242 Ill. 2d 205, 220 (2011). 151

Jefferson v. Sheahan, 279 Ill. App. 3d 74 (1st Dist. 1996). 168

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745 ILCS 10/5-101.

169

Id. § 5-102.

170

Dezort v. Vill. of Hinsdale, 35 Ill. App. 3d 703, 708 (2d Dist. 1976). 181

182

Id. § 5-106.

171

Dezort, 35 Ill. App. 3d at 710.

Hatteberg v. Cundiff, 2012 IL App (4th) 110417, ¶ 16. Hatteberg, 2012 IL App (4th) 110417, ¶ 16. 173

Mayan v. Weed, 310 Fed. Appx. 38, 41 (7th Cir. 2009); Collignon v. Milwaukee County, 163 F.3d 982, 988 (7th Cir. 1998). 195

See id. (finding that 745 ILCS 10/4-105 requires no more than the general duty imposed on jailers to provide ordinary and reasonable care). 183

172

Woods, 2007 U.S. Dist. LEXIS 68846, at *22–23; Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). 194

184

745 ILCS 10/4-105.

Ducey v. Siddiqui, No. 08-CV-0692, 2009 WL 2488294, at *4 (S.D. Ill. Aug. 13, 2009). 196

197

745 ILCS 10/5-106.

174

Young v. Forgas, 308 Ill.App.3d 553, 561 (4th Dist. 1999) (citing Merriam–Webster’s Collegiate Dictionary 377 (10th ed. 1998)). 175

E.g., Hatteberg, 2012 IL App (4th) 110417, ¶ 16; Young, 308 Ill. App. 3d at 562. 176

Bielema, 2013 IL App (3d) 102808, ¶ 12; Winfrey, 274 Ill. App. 3d at 944. 177

Koltes v. St. Charles Park Dist., 293 Ill. App. 3d 171, 178 (2d Dist. 1997); Oravek v. Cmty. Sch. Dist. 146, 264 Ill. App. 3d 895, 898 (1st Dist. 1994); Bialek v. Moraine Vall. Cmty. Coll. Sch. Dist. 524, 267 Ill. App. 3d 857, 865 (1st Dist. 1994). 178

See, e.g., Williams v. City of Evanston, 378 Ill. App. 3d 590 (1st Dist. 2007); Young, 308 Ill. App. 3d at 553; Hampton v. Cashmore, 265 Ill. App. 3d 23 (2d Dist. 1994); see also Carter v. Simpson, 328 F.3d 948 (7th Cir. 2003). 179

Williams, 378 Ill. App. 3d at 600.

180

Cooper v. Office of Sheriff of Will County, 333 F. Supp. 2d 728, 731 (N.D. Ill.2004). 185

186

Id.

See Ducey, 2009 WL 2488294, at *4-5.

Moore v. State of Indiana, 999 F.2d 1125, 1129 (7th Cir. 1993). 198

Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997); Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). 199

187

Id. at 732.

188

Id. at 732–33.

Boyce v. Moore, 314 F.3d 884, 888 (7th Cir. 2002). 200

Williams v. Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007) (The constitutional standard of care applicable to pre-trial detainees is derived from the Fourteenth Amendment substantive due process, whereas the Eighth Amendment’s prohibition against cruel and unusual punishment governs the standard of care available to post-trial prisoners.). 189

Collignon v. Milwaukee Cnty., 163 F.3d 982, 987–88 (7th Cir. 1998). 201

Collignon, 163 F.3d at 988 (quoting Youngberg v. Romero, 457 U.S. 307, 322–23 (1982)). 202

190

Estelle v. Gamble, 429 U.S. 97, 103–05 (1976).

203

191

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

204

Woods v. Morris, No. 04-1440, 2007 WL 2792154, at *15 (C.D. Ill. Sept. 18, 2007) (quoting Mathis v. Fairman, 120 F.3d 88, 91 (7th Cir. 1997)).

205

192

Farmer, 511 U.S. at 837; Miller v. Neathery, 52 F.3d 634, 638 (7th Cir. 1995). 193

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Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010). Rice ex rel Rice v. Corr. Med. Servs., 675 F.3d 650, 676 (7th Cir. 2012). Johnson v. Doughty, 433 F.3d 1001, 1010–11 (7th Cir. 2006).