I’ve Joined Horvitz & Levy – and We’re Opening a San Francisco Office!

Exciting&  news from a press release this morning:

Horvitz & Levy LLP, the country’s largest boutique law firm dedicated to civil appeals and trial strategy consulting, is opening a San Francisco office at 505 Sansome Street in the city’s iconic Transamerica Pyramid Center, strengthening the firm’s California roots. The new office will be led by Kirk C. Jenkins, the former Chair of Sedgwick LLP’s Appellate Task Force.

Horvitz & Levy has 40 attorneys focused on civil appeals in state and federal courts nationwide. “Given the nature of our practice and the business growth in the Bay Area, it makes sense to increase our presence in Northern California for our clients’ benefit and for all of our attorneys who frequent the area to serve those clients,” said Barry Levy, a member of the firm’s management committee. “We’re looking forward to having Kirk lead our San Francisco office.”

Jenkins, a well-known appellate authority, has served as appellate counsel in more than 200 appeals and writs in state and federal courts across the country. He is a Vice President of the California Academy of Appellate Lawyers, an elected fellow of the American Academy of Appellate Lawyers, and an elected member of the American Law Institute, where he has been active in helping develop the new generation of Restatements of the Law.

“Horvitz & Levy’s focus on appeals and trial strategy consulting is a perfect platform for my practice which, in the last few years, has included litigation support through data analytics and artificial intelligence,” said Jenkins. “More and more legal departments are taking a closer look at analytics to determine the best approach to each case,” added Jenkins. “Nowhere is this more evident than in San Francisco and Silicon Valley where the legal industry is keen to embrace the latest technologies.”

Jenkins will continue to write his data analytics blog The California Supreme Court Review, which studies decision making in the California Supreme Court from a data analytics point of view.

“Horvitz & Levy is known throughout the legal community as the nation’s premier appellate boutique, and I’m looking forward to working with my new colleagues to expand our existing practice in Northern California.”

Image courtesy of Flickr by AG Gilmore.

Join Me on November 15 for “Patterns and Practice: How Analyzing the Illinois Supreme Court Can Boost Your Appeals”

On November 15 at the Union Club in Chicago, I’ll have the pleasure of joining the members of the Appellate Lawyers Association and the South Asian Bar Association of Chicago for a discussion of the data analytics revolution as it applies to appellate law – “Patterns and Practice: How Analyzing the Illinois Supreme Court Can Boost Your Appeals.”  From the event announcement:

Please join us for an innovative exploration of data analytics and how it can enhance your appellate practice.  Kirk C. Jenkins, chair of the Appellate Task Force at Sedgwick LLP, has created an analytic database that includes roughly 275,000 data points from decisions handed down by the Illinois Supreme Court between 1990 and 2016.  Drawing on that robust analytic framework, Mr. Jenkins will share insights on and explore topics such as whether one can predict a case’s result by counting the questions at oral argument; which justices most often vote together and on what areas of law; and whether the Court (as well as individual justices) more often votes to reverse Appellate Court wins by plaintiffs or defendants.  A regular practitioner in California, Mr. Jenkins also will address distinctions between that state’s highest court and the Illinois Supreme Court.

Mr. Jenkins has exclusively practiced appellate litigation for more than 20 years.  He has served as lead counsel in over 200 appeals in state and federal courts across the nation and recently was elected a Fellow in the American Academy of Appellate Lawyers, an organization whose members have demonstrated the highest skill level and integrity in the practice of appellate law.

To register for the event, click here.

Image courtesy of Pixabay by Pexels.


Coming Next Week: My 1,000th Blog Post

Last week, I was looking at our archives, pulling up old research, and I stumbled onto this two-year old post – my 500th on Appellate Strategist. Now that our other two blogs, Illinois Supreme Court Review and California Supreme Court Review, have been publishing for a while, I decided to check the dashboards there too. And it turns out that this summer – next week, in fact – I’ll be publishing my 1,000th blog post.

Since I’ve always got data to quote, here are the numbers:

My first post on Appellate Strategist was published February 23, 2010. In all, I’ve published 604 posts there.

My first post on Illinois Supreme Court Review was published January 9, 2015. In all, I’ve published 264 posts on ISCR.

And finally, my first post on California Supreme Court Review was published April 27, 2016. I’ve published 129 posts on CSCR, making my total for the past seven years and five months 997 posts (and no, I’m not counting this simultaneous post on all three blogs – that would be cheating . . .)

So join us next week as we count down towards 1,000 – and if you’ve got a suggestion for what you’d like to see in the 1,000th post – let me know in the comments. And in the meantime, for an ongoing collection of news and analysis from a wide variety of sources, visit our Flipboard curated magazines on the California Supreme Court and the Illinois Supreme Court.

Image courtesy of Flickr by Chad Kainz (no changes).

Are You Affiliated? The Supreme Court Further Limits Forum Shopping in the Mass Tort Context


Pardon the Jimi Hendrix allusion, but it seemed appropriate given yesterday’s Supreme Court decision in Bristol-Myers Squibb Co. v. Superior Court of California, No. 16-466 (June 19, 2017), in which the California Supreme Court’s finding of specific jurisdiction against a drug manufacturer was reversed as to non-California plaintiffs, who sued alleging personal injuries due to their ingestion of Plavix, a prescription drug that inhibits blood clotting. While for defendants the decision is undoubtedly welcome, the Court relies on an “affiliation” threshold, requiring a relationship between the defendant and forum arising from the plaintiff’s claim before specific jurisdiction over the defendant can be maintained. “Affiliation” works well for the facts of the case, but perhaps not so well for broader applications. Just as the 1960’s square had no clue what Hendrix meant, it may be that “affiliation” lacks sufficient precision to give judges guidance on more complicated facts patterns in the future.

California and non-California plaintiffs filed eight separate state court complaints alleging personal injuries due to use of Plavix. As to the non-residents, BMS moved unsuccessfully to quash service of process for want of personal jurisdiction, arguing that because these plaintiffs alleged no California connection to their injuries (they didn’t get Plavix through a California source, and weren’t injured or treated in California) there was no basis for the exercise of jurisdiction. The California Court of Appeal reversed on general jurisdiction, citing Daimler, but affirmed on specific jurisdiction. The California Supreme Court affirmed the appellate court, agreeing there was no general jurisdiction, but finding specific jurisdiction under a “sliding scale approach to specific jurisdiction.” Since BMS had other California contacts, unrelated to plaintiffs’ claims, the exercise of jurisdiction was justified since a “less direct connection between BMS’s forum activities and plaintiffs’ claim” was all that need be shown.

The Supreme Court, per Justice Alito, reversed, 8-1. While a court with general jurisdiction over a corporation (that is, a court sitting in a forum in which the corporation is “fairly regarded as at home”) may hear any claim against the defendant, the rules are different for forum where the defendant is not at home. To exercise specific jurisdiction, the suit must arise out of or relate to the defendant’s forum contacts. There must be an “affiliation” between the forum and the underlying controversy, to wit, activity or an occurrence in the forum state, sufficient to justify the exercise of jurisdiction. This requirement grows out of the territorial limitations on the power of the states, who retain sovereign authority to try causes in their courts. Under the Fourteenth Amendment, even if the forum is the most convenient, even if the defendant suffers minimal or even no inconvenience in litigating there, and even if the state has an interest in applying its law to the dispute, interstate federalism may divest a state of its power to render a valid judgment, in the absence of an adequate affiliation.

BMS sold all sorts of products in California (including Plavix to the California plaintiffs), but those sales, and other activities were unrelated to the non-residents’ claims, and therefore could not supply a constitutional basis for the exercise of jurisdiction. In a direct rebuff to the California Supreme Court, Justice Alito wrote “[o]ur cases provide no support for this approach, which resembles a loose and spurious form of general jurisdiction.”

While an “affiliation” standard works well in this context, where it appears that a group of non-California plaintiffs, probably gathered together by a bundler using advertising to secure representation, insinuate themselves into suits to take advantage of a plaintiff-friendly jurisdiction, it may not work so well at the margins. Assume, for example, foreign plaintiffs, without other connections to the forum, allege that forum-based activity, supported by a defendant not otherwise amenable to general jurisdiction, caused their injury. (Think use of opinion-leaders in the prescription drug context, or independent research done in California, but licensed by a foreign corporation.) Are opinion-leaders affiliated? Is the licensee of technology developed in the forum but marketed elsewhere affiliated with the forum where the research was independently conducted?

Corporate defendants no doubt welcome this restrictive approach to specific jurisdiction, and it will likely inhibit the ability of mass tort bundlers to concentrate the power of numbers in a jurisdiction perceived to be more receptive to such claims. But, since “affiliation” lacks precision, we can no doubt anticipate that the outer limits of Justice Alito’s doctrine will be tested, and if possible stretched by what is an ever aggressive mass tort bar.

Image courtesy of Flickr by Mattza (no changes).

Florida High Court Clarifies When an Insured Is Entitled to Attorneys’ Fees When an Insurer Initially Denies a Sinkhole Claim


In Johnson v. Omega Insurance Co., 200 So. 3d 1207 (Fla. 2016), the Florida Supreme Court held that an insured was entitled to an award of attorneys’ fees under section 627.428, Florida Statutes and the confession of judgment doctrine based on an insurer’s post-suit tender of policy benefits for a sinkhole claim after the insurer initially denied the claim.  To view the Court’s slip opinion click here; to view the Court’s docket click here.

Omega Insurance Co. issued to Kathy Johnson a homeowner’s policy that included coverage for  sinkhole damage.  When Johnson noticed structural damage to her home, she filed an insurance claim with Omega, asserting that the damage was caused by sinkhole activity on her property.  Omega investigated the claim pursuant to chapter 627 by retaining a professional engineering and geology firm to conduct testing.  The firm’s report concluded that, while the property was damaged, there was no sinkhole activity on the property.  Based on the report, which is presumed correct by statute, Omega denied Johnson’s claim.  In turn, Johnson, at her expense, retained a civil engineering firm to evaluate the cause of the damage to her home.  Johnson’s firm found that sinkhole activity did cause the structural damage.

Johnson then filed suit against Omega for failing to pay her sinkhole benefits.  Upon motion by Omega, the trial court stayed the litigation to allow a neutral evaluation to take place.  The neutral evaluation agreed with the report issued by Johnson’s firm.  Upon receipt of the report, Omega paid the policy benefits.  Johnson then moved for an award of attorneys’ fees under § 627.428 which provides that “[u]pon the rendition of a judgment or decree  . . . against an insurer and in favor of any named . . . insured . . . under a policy or contract executed by the insurer, the trial court . . . shall” award the insured its reasonable attorneys’ fees.  Based upon the confession of judgment doctrine, which equates an insurer’s tender of policy benefits or a settlement agreement with a “judgment” under § 627.428, the trial court granted the motion.

Omega appealed to the Fifth District which reversed, finding that Omega’s initial denial was not wrongful or unreasonable.  The district court equated “wrongful” with an insurer’s bad faith denial of a claim.  The Court’s conclusion was buttressed by several facts:  (1) Omega complied with its statutory obligations under chapter 627 by retaining an engineer to identify the cause of loss and issue a report; (2) The report, which is presumed correct by statute, found that sinkhole activity was not the cause of the damage; (3) Before filing suit, Johnson failed to present her countervailing report to Omega, failed to at least notify Omega that she disagreed with its report or failed to further attempt to discuss her claim with Omega.

The Florida Supreme Court quashed the Fifth District’s decision, finding that it misapplied both the statutory presumption of correctness found in the sinkhole statutes and § 627.428.  The Court addressed two main issues:  (1) whether the statutory presumption of correctness for an insurer’s internal report during the investigation process in the sinkhole statutes extends to later proceedings; and (2) whether an insured’s recovery of attorneys’ fees under § 627.428 requires an insurer’s bad faith in denying a valid claim, or simply an incorrect denial of benefits.

The Court—based on prior precedent—concluded that the statutory presumption of correctness in the sinkhole statutes only applies to the sinkhole “initial claims process” and not to litigation instituted by an insured to recover policy benefits.  Johnson therefore did not have the burden of separately rebutting that initial presumption to recover attorneys’ fees under § 627.428.

The Court also concluded that “in the context of section 627.428, a denial of benefits simply means an incorrect denial.”  An insured does not need to prove that the insurer engaged in bad faith or malicious conduct in denying a claim.  Instead, if there is dispute between the insurer and the insured over policy benefits and there is a judgment in favor of the insured or the insurer pays without a judgment, then the insured is entitled to fees under § 627.428.

In its opinion, the Court rejected the insurer’s reliance on State Farm Florida Insurance Co. v. Colella, 95 So. 3d 891 (Fla. 2d DCA 2012), because it found the case to be distinguishable.  The Court’s discussion of the case, however, demonstrates that in determining whether an insured is entitled to fees under § 627.428 the insured’s conduct may also be considered.  In Colella, the Second District found that there was no breach of contract by an insurer—and hence no entitlement to fees under § 627.428—when the insured litigated “in bad faith to profit from a technicality” and engaged in “manipulation and foul play.”

The upshot of this decision is that once an insurer denies benefits and the insured files suit to dispute the denial, the insurer cannot then abandon its position “without repercussion.”  In other words, an insurer cannot “backtrack after the legal action has been filed” by paying the claim to avoid an insured’s fee entitlement under § 627.428.  In short, insurers should be absolutely positive of their denial of benefits before informing the insured.  If an insured files suit and the denial is proven “incorrect,” then an insured is entitled to fees.  Most importantly, it is irrelevant to the insured’s fee entitlement whether the insured fails to challenge the insurer’s denial before filing suit.

Image Courtesy of Flickr by Seattle Municipal Archives (no changes).

Sharply Divided Supreme Court Declines to Establish a Bright-Line Rule on Non-Lawyers Representing Corporations in Administrative Actions

2804456706_72b8c649d2_zA non-lawyer with no apparent formal connection to a corporation is the sole representative of the corporation at an administrative proceeding. When the decision comes down, it’s never properly served on the corporation. Is the non-lawyer’s participation imputed to the corporation, meaning that the corporation had notice of the adminstrative proceeding and it’s now final and binding? Two weeks ago, a sharply divided Illinois Supreme Court held in Stone Street Partners, LLC v. The City of Chicago Department of Administrative Hearings that the answer was no. Our detailed report of the underlying facts and lower court rulings is here. Our report on the oral argument is here.

The plaintiff in Stone Street is the owner of property in the City of Chicago. In March 2009, the City recorded a judgment against the property for $1,050 in fines and costs for building code violations. The judgment had been entered ten years earlier.

Although much of the record from the 1999 action has been destroyed, what little remained failed to establish that anyone affiliated with the plaintiff had been contemporaneously notified of the matter. A “communication transmittal form” noting the purported building code violations listed the wrong property owner. The notices were mailed to an entirely different entity which was neither an agent or representative of the plaintiff. Copies were sent to “Stone Street Partners,” but the notices were sent to the wrong address and carried the wrong name.

Nevertheless, a non-lawyer entered a written appearance in the 1999 administrative proceeding. He left blank the section of the appearance form where he was asked to state under oath that he was the owner, lessee, attorney or authorized agent of the owner of the property. As best anyone could tell, the individual who appeared had no connection with the property or the owner – he was the private caretaker for one of the members of the plaintiff entity. However, because that member had diminished mental capacity due to a stroke, he could not have given the caretaker authority to represent the plaintiff.

After the plaintiff learned of the 1999 judgment in 2009, its counsel wrote to the City, demanding that the judgment be released and its title to the property be cleared. When that didn’t happen, the plaintiff sought relief with the Department of Administrative Hearings, asking that the judgment be set aside since the caretaker could not possibly have validly represented the corporation without being guilty of unauthorized practice of law. The Department denied the request, holding that it lacked jurisdiction to set aside the 1999 judgment. So the plaintiff filed a complaint for administrative relief, asking that the 1999 judgment be set aside. The City moved to dismiss. The court granted dismissal with respect to three claims, but affirmed the Department’s decision that it lacked jurisdiction over the 1999 judgment on the remaining claim. The Court of Appeal reversed in part, relying heavily on its view that the plaintiff could not have waived its objection to proper notice because the caretaker who appeared on its behalf was not a lawyer.

In an opinion for a narrow 4-3 majority by Chief Justice Karmeier, the Supreme Court affirmed. The majority agreed that the caretaker’s status was central to the question of whether the plaintiff could now challenge the 1999 judgment. Absent a holding that the caretaker’s presence was imputed to the plaintiff, there was no possible basis for concluding that the company had ever received notice. But that issue didn’t depend on whether or not the caretaker was a lawyer, since if he had no authority, either actual or potential, to represent the corporation, it didn’t matter whether or not he was an attorney. Where there’s no authority, even an attorney’s acts are a nullity against the party.

And in fact, there was no possible basis for finding that the caretaker had authority to appear. He didn’t own the subject property, he wasn’t the lessee, he wasn’t a lawyer, and he neither worked for nor represented the plaintiff company.   Finally, nothing the company had done or failed to do arguably gave him apparent authority to appear. Given that, the caretaker’s participation was not imputed to the corporation. Since the 1999 notice was neither served on the corporation’s registered agent nor sent to its principal place of business, the corporation was never served with the notice as a matter of law, and the Department failed to acquire personal jurisdiction over the plaintiff corporation. Since the 1999 judgment was void ab initio, it could be collaterally attacked at any time. Accordingly, the plaintiff was entitled to go forward with its claims to quiet title.

Justice Freeman dissented, joined by Justices Burke and Theis. According to the dissenters, the record was inadequate to conclusively establish that the plaintiff had never waived its jurisdictional challenge. The dissenters pointed out that there had been an additional hearing a month before the one where the caretaker appeared, and that the surviving order indicated that someone had appeared on the plaintiff’s behalf. The dissenters argued that there was no basis for concluding that no waiver of jurisdiction had happened at that hearing. Finally, the dissenters concluded that the Court should have addressed the unauthorized practice of law issue and held that appearing at an administrative hearing on behalf of a corporation did not constitute the practice of law.

Image courtesy of Flickr by Chris Brown (no changes).

Illinois Supreme Court Holds Dated Business Letter Not Sufficient to Trigger Deadline for Administrative Appeal

10808798956_a1b032c395_zThe Illinois Administrative Review Law provides that a complaint for judicial review of an administrative decision must be filed within 35 days from the date that a copy of the decision to be reviewed was served upon an aggrieved party. In Grimm v. Calica, the Illinois Supreme Court held that the date in the heading of a business letter was not sufficient to constitute service for purposes of the statute. Our detailed summary of the underlying facts and lower court rulings is here.

Grimm began in 2012 when the Department of Children and Family Services investigated and indicated a finding of child abuse against the plaintiff. The plaintiff, a teacher, argued that the finding was incorrect and requested that it be expunged. In 2013, an administrative law judge conducted a hearing on the request, ultimately recommending that the plaintiff’s request be denied. The Department adopted the ALJ’s decision.

The Department announced its decision in a letter to the attorney who had represented the plaintiff at the hearing. There was no affidavit of service included with the letter, or even any unsworn representation as to whether it had been mailed on the day the letter was dated, or later.

The plaintiff filed her complaint for administrative review thirty-six days after the date of the letter. The Department moved to dismiss the complaint, alleging that it was untimely. The plaintiff countered that the statute required service on her, not on her attorney, and that the date on the business letter was not sufficient notice of service to satisfy due process. The trial court denied the motion to dismiss and reversed the decision on the merits.

The Department appealed the finding of timeliness. The Appellate Court affirmed the trial court, holding that the date on the business letter stated only the date of the letter, not necessarily the date of mailing. In an opinion by Justice Theis, the Supreme Court affirmed.

Before the Supreme Court, the Department argued that the plaintiff’s due process challenge failed because due process neither required that judicial review be available at all, or imposed any requirements on the Department about telling the plaintiff of the option, or the timing for exercising it. True, the Court said, but due process does require that the agency decision provide clear notice to affected parties. The majority applied the due process balancing test provided by the U.S. Supreme Court in Mathews v. Eldridge: (1) the magnitude of the private interest at stake; (2) the risk of an erroneous deprivation of that interest and the probable value of additional safeguards; and (3) the potential burden on the government from additional procedures.

The private interest at stake was considerable, according to the majority – the plaintiff’s prospects for future employment as a teacher. Similarly, the risk of an erroneous deprivation was real. The majority agreed with the Appellate Court’s view that there was something counterintuitive about the notion that – if the date on the letter triggered the 35-day clock – notice was deemed given before it was received. Finally, the burden on the Department of making the situation perfectly clear by expressly stating the date of mailing was insignificant.

Justice Thomas dissented, joined by Chief Justice Karmeier. The dissenters argued that because judicial review of administrative decisions is not required by the due process clause, it follows that parties need not be told of the thirty-five day time limit to file their complaint, or how the thirty-five days is calculated. According to the dissenters, even if it was true that the date on the letter was the date of the decision rather than the date of mailing, there was a rebuttable presumption in the law that the date on an agency decision is the mailing date, and plaintiff offered nothing to challenge that presumption. The dissenters further noted that the plaintiff never testified that she was confused as to the correct service date – instead, it appeared that the one-day delay in filing was actually the result of plaintiff being unable to find a lawyer.

Ironically, the take-away from holdings like Grimm is limited as a practical matter. Lawyers should always default to initiating appellate proceedings at the earliest arguable deadline, since in many cases the untimely filing of the initiating document – a notice of appeal, petition for review, or administrative review complaint – can’t be fixed.

Image courtesy of Flickr by Mick Taylor (no changes).

Illinois Supreme Court Agrees to Hear Challenge to Civil Forfeiture

2253638192_1587a734ca_zCivil forfeitures have been controversial for a number of years. The underlying idea – that a person can be said to have forfeited his or her rights in a particular item of property by using it to commit a crime – is difficult to challenge, but some observers believe that the remedy has been abused in some jurisdictions. Indeed, the Washington Post claimed that some police departments had seized property owned by persons who had not even been charged with a crime. At the end of its January term, the Illinois Supreme Court agreed to take on this contentious issue, allowing a petition for leave to appeal in The People ex rel. Hartrich v. 2010 Harley-Davidson, a case from the Fifth District.

2010 Harley-Davidson began in 2014. The claimant was the sole owner of a Harley-Davidson motorcycle valued at $35,000. At the time, the claimant’s husband had had his driver’s license revoked due to a conviction for driving under the influence. The husband suggested to his wife that they go for a ride on the motorcycle. With the wife driving, the couple drove to an establishment twelve blocks from their home. During the evening, the wife drank nothing, but by the time they left just after midnight, the husband was allegedly intoxicated.

The husband nevertheless insisted on driving the motorcycle home. He jumped on the bike and told his wife she could either ride with him or walk home. She relented, but during the short drive home, the couple was stopped by a police officer. The husband was given a breath test, which indicated that his blood alcohol concentration was above the legal limit. The husband ultimately pled guilty to a charge of aggravated DUI in return for dismissal of a charge of driving on a revoked license.

The State’s Attorney filed an action seeking forfeiture of the motorcycle, even though it was solely owned by the wife. In his complaint, the State’s Attorney alleged that the motorcycle was used with the knowledge and consent of the owner in the commission of a crime – aggravated DUI. After an evidentiary hearing, the trial court entered an order forfeiting the motorcycle to the State. The wife filed a motion for reconsideration, arguing both that there was insufficient evidence that she had consented to her husband’s use and that the forfeiture violated the Eighth Amendment ban on excessive fines.

The Appellate Court rejected the wife’s insufficient evidence challenge, concluding that the fact that the wife had ridden home as a passenger was sufficient to support a reasonable inference that she had consented to her husband’s driving. Although the wife testified that she joined her husband on the bike because no woman would want to walk twelve blocks home after midnight, the Appellate Court concluded that the trial court was not required to believe her testimony.

The Court then turned to the Eighth Amendment challenge. A forfeiture violates the excessive fines clause if it is grossly disproportionate to the gravity of the offense. The courts administer this test by considering three factors: (1) the inherent gravity of the offense compared with the harshness of the penalty; (2) whether the property was an integral part of the commission of the crime; and (3) whether the criminal activity involving the property was extensive in terms of time and/or spatial use.

The Appellate Court held that although the husband’s offense was serious, the wife’s conduct – at most, a consenting passenger (and disputing even that much) – was less serious. In comparison, the forfeiture of a $35,000 motorcycle of which she was sole owner was particularly harsh. The parties agreed that the motorcycle was obviously an integral part of the commission of the crime of aggravated DUI, but the Court concluded that the third factor weighed at least somewhat against forfeiture given that the drive had only been approximately twelve blocks. In light of its weighing of these factors, the Appellate Court held that the forfeiture of the wife’s motorcycle constituted an excessive fine under the Eighth Amendment.

We expect 2010 Harley Davidson to be decided by next winter.

Image courtesy of Flickr by Valerie Everett (no changes).

Illinois Supreme Court Holds Railroad May Argue Third Parties Exclusively Responsible for Employee Injuries

15187909154_3d65087d0e_zIn order to recover damages under the Federal Employers’ Liability Act, an employee of a railroad must show that the railroad operated in interstate commerce, that the plaintiff was injured in the scope of his or her duties, and that the injury resulted “in whole or in part” from the employer’s negligence. What this means, the U.S. Supreme Court has held, is that if the railroad is responsible for the injury even slightly, the railroad is entirely liable. As a result, evidence which purports to show joint tortfeasors which would routinely be introduced in other tort cases never comes in in railroad cases.

But can the railroad try to prove that a third party was solely responsible for the employee’s injury? Last month, the Illinois Supreme Court unanimously held in Wardwell v. Union Pacific Railroad Company that the answer is “yes.”

Plaintiff was riding in a van owned by his railroad employer and driven by an agent of the railroad. The van was rear-ended by a vehicle driven by a third party, and the plaintiff suffered disabling injuries. Plaintiff filed a FELA suit, alleging that his vehicle had negligently cut in front of the third party, causing the accident at least in part. At trial, the driver of the plaintiff’s vehicle testified that she activated her turn signal, checked her side mirror, and then made a lane change. The van was hit twenty seconds later. The third party driver testified at trial that she was intoxicated at the time of the collision, was arrested at the scene, and that she had not seen the van – she either “fell asleep or was blacked out” prior to the collision. Further evidence suggested that the third party was traveling ten to fifteen miles per hour over the speed limit.

The jury returned a verdict for the railroad. The plaintiff moved for a new trial, arguing that the defendant had been allowed to argue that the third party was the sole cause of the accident, and that the “sole cause defense” was not permitted in a FELA action. The trial court denied the motion, but the Appellate Court reversed.

The Supreme Court reversed the Appellate Court. The problem with the Appellate Court’s holding, the Court said, was that in order to determine whether the railroad was even to a smallest degree responsible for an accident, the jury would have to consider all the evidence – including the possibility that a third party was entirely responsible. Keeping the jury from considering the third party’s negligence would render the circumstances incomprehensible and all but eviscerate the FELA standard of liability. The Court noted that its holding was consistent with the holdings of several other courts, including the U.S. Supreme Court, that no recovery is possible under FELA where the plaintiff is completely responsible for his or her own injury.

Justice Kilbride filed a special concurrence, arguing that the standard federal instruction for causation under FELA, which emphasizes the scope of the potential liability of the defendant, should be given in Illinois.

Image courtesy of Flickr by Tony Webster (no changes).


Illinois Supreme Court Agrees to Clarify What a “Riding Trail” is For Purposes of the Tort Immunity Act

14992097864_7082cb73f8_zAccording to Section 3-107(b) of the Local Governmental and Governmental Employees Tort Immunity Act, no public entity or public employee is “liable for an injury caused by a condition of . . . [a]ny hiking, riding, fishing or hunting trail.” 745 ILCS 10/3-107(b). The purpose of the statute is to encourage public entities to maintain such facilities in more-or-less their natural state.

But what is a “riding trail” under the Act? The Illinois Supreme Court agreed to decide that question in late January, allowing a petition for leave to appeal in Corbett v. County of Lake, a decision from the Second District.

Corbett began in 2013 when plaintiff, who was part of a group of cyclists riding a path within Highland Park, was thrown from her bicycle and seriously injured. Plaintiff alleges that the defendants were on notice of the poor condition of the path prior to the accident – weeds and other vegetation were growing through the asphalt, making portions of the path broken, bumpy and elevated.

The City raised Section 3-107(b) as an affirmative defense in its answer, and subsequently moved for summary judgment, arguing that the path where plaintiff was injured was a “riding trail” under the Act. The plaintiff opposed the motion, arguing that the stretch of path where she was injured runs through a developed area of the park, not through a forest or a mountainous region. There are allegedly commercial buildings on both sides of the path, and many businesses have cyclone fences abutting the path. Finally, Commonwealth Edison allegedly owns several utility poles along the path.

The trial court granted both defendants summary judgment. The court held that the County was immune under Section 3-106 of the Act (745 ILCS 10/3-106), which requires proof of willful and wanton conduct to impose liability on a public entity for injury caused by conditions on public property used for recreational purposes, and that the City was immune under Section 3-107(b). The plaintiffs didn’t appeal the ruling as to the County defendant, but did appeal with respect to the City.

The Appellate Court reversed. Reviewing the limited earlier caselaw construing the term “riding trail,” the Court concluded that a path need not be totally unimproved in order to qualify as a riding trail – many if not most trails have been modified at least slightly in order to make them accessible to the public. However, the Court held that the plain meaning of the term “trail” was a “marked path through a forest or mountainous region.” That restrictive definition necessarily meant that the path in Corbett was not a “riding trail” under the statute. Although some development near the path did not per se mean that the path was not a “riding trail,” when industrial and residential development surrounded a path, by definition it could not be a “riding trail.” Since the Act was not applicable to the claims against the City, the Appellate Court reversed.

We expect Corbett to be decided by next winter.

Image courtesy of Flickr by Eli Christman (no changes).