Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Illinois’

The Eddy Curry quandary

Prawfsblawg can be remarkably entertaining sometimes thanks to the efforts of Kate Litvak, who should have her own blog. Basketball player Eddy Curry may or may not have a genetic heart condition that could kill him. The Chicago Bulls refused to let him play without a DNA test that (perhaps) could determine whether he has the condition. Curry refused the test, and the standoff was resolved by a trade to a different team that didn’t require the DNA test.

The Bulls’ concern was no doubt magnified by the fear of liability and the inability to trust Illinois courts to enforce a waiver as legally binding, raising second-order questions of genetic privacy and discrimination. Cf. the similar questions in the Johnson Controls case, 499 U.S. 187 (1991).

The post is interesting enough. But if you have an aversion to sports, you might have missed the real fun in the comments.

Read On…

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Deep Pocket Files: Taxpayers responsible for porch collapse?

You may recall the unfortunate collapse of a Chicago porch at a party that killed thirteen and injured 57. Of course there are lawsuits against the building owners and the contractor who built a porch that couldn’t support 70 people. But the plaintiffs’ attorneys recognize that that insurance and the defendants’ underlying assets will run out quickly. Thus, they have sought to join the city of Chicago as a defendant for allegedly failing to enforce building codes. (Because, as anyone who has lived in Chicago knows, what that town needs is more city workers.)

John Ehrlich, the city’s chief assistant corporation counsel, told Cook County Judge Jeffrey Lawrence that if he didn’t drop the city from the lawsuit, it could lead to suits against other cities for everything from bad restaurant food to house fires.
“That makes the city of Chicago an insurer for every single bad incident that occurs on private property. And it makes every city — every municipality in the state — an insurer for every bad incident” that happens, Ehrlich said. ”If you allow that to happen, you will have [the] bankruptcy of every single municipality and local government in the state. That is simply untenable.”

(Nathaniel Hernandez, “Porch suit threatens Illinois cities: lawyer”, Chicago Sun-Times, Aug. 24).

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Ill. high court tosses aftermarket auto parts verdict

By a unanimous vote, the Illinois Supreme Court has decertified and thus nullified a $1.2 billion class action verdict, much criticized here (Oct. 8, 1999) and in other places, which held that State Farm’s practice of specifying generic aftermarket parts after auto crashes had defrauded consumers. Among the many problems with the verdict were that the court had lumped together consumers holding a wide range of insurance policies applying different language to the handling of the aftermarket parts issue, that it had ignored wide variations among consumers in what if any harm they had suffered from the practice, and that it had applied Illinois law to policies issued mostly to consumers in states other than Illinois, some of whose regulators had specifically contemplated and approved (or even required) the use of generic parts after crashes. Martin Grace and Ted Frank comment at PoL, and discussions elsewhere include those of (again) Martin Grace and Larry Ribstein. More: Amy Joyce, “State Farm Wins Reversal of $1 Billion Suit”, Washington Post, Aug. 19.

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Detroy Marshall v. Burger King

From the Deep Pocket Files, sometimes I don’t have to add a thing:

Pamela Fritz accidentally backed her car into a lamppost while attempting to exit her parking space. Shifting forward and accelerating quickly to escape the lamppost menace, she lost control of her car and it went airborne, flying through the window and striking Marshall. It’s a whopper of a tale, but it’s all true. And Marshall’s estate sued the restaurant for wrongful death.

See, as the complaint alleges, defendants

“Improperly designed the Burger King restaurant building, by designing the building to be bricked up only a few feet from the ground, when the Defendant[s] knew or should have known, that permitting the building to be bricked up only a few feet from the ground may allow a vehicle from the parking lot to drive into the building, and crash through the glass on top of the brick.”

I’ll now quote from the Illinois appellate court decision:

Burger King and Davekiz filed a joint motion to dismiss, claiming they had no duty under the law to protect their patrons from the threat of runaway cars crashing into the restaurant. The trial court granted the motion and dismissed the allegations against Burger King and Davekiz with prejudice. The trial court reasoned:

“[T]he likelihood of this scenario is so minor that to guard against it in the manner suggested would require fortifying every building within striking distance of any crazed or incredibly inept driver, and the result would be to require foregoing any hope of aesthetically pleasing or business-enticing buildings. Obviously these two factors are less important that [sic] the safety of invitees, but the Court is required to do a balancing test and in doing so, I find that the duty stated by the plaintiffs is too high in this instance.”

Yet, amazingly, the appellate court reversed. Burger King has appealed to the Illinois Supreme Court. The always-looking-out-for-our-interests Illinois Trial Lawyers Association has filed a brief asking for affirmance. (Brian Mackey, “Car Smashing Store ‘Foreseeable’: Advocates”, Chicago Daily Law Bulletin, Aug. 2 ($) (via ICJL); Anthony Marshall, “Parking lots can create unexpected dangers if not inspected”, Hotel & Motel Management, Jun. 20). (The Anthony Marshall columns, which assume matter-of-factly that defendants will and should get sued for everything, have recommended that hotels ban water slides, chewing gum sales, bathtubs, and birthday candles. They’re valuable reading to explain why small businessmen hate lawyers.)

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Jailed…for not breaking the law

Conflicting legal obligations in Illinois:

An Alton woman embroiled in a divorce case spent more than four hours in jail for contempt of court after she refused a Madison County’s judge’s order to return a handgun to her ex-husband, a convicted felon.

Elizabeth “Beth” Ritchie, 30, said that complying with Associate Judge Ellar Duff’s order, delivered at a hearing on Thursday, would have required Ritchie to commit a crime herself.

It is a felony in Illinois for a felon to possess a firearm, and for anyone to transfer a gun to a felon.

Duff said in an interview Friday that she did not learn until after the hearing that Ritchie’s ex-husband was a felon, and that she then ordered Beth Ritchie released from the Madison County Jail.

Ritchie said she tried to explain the situation to Duff in court but was ignored.

“I was being ordered by the law to break the law,” Ritchie said. “And when I wouldn’t, I got thrown in jail.”

(Paul Hampel, “Justice misfires over gun”, St. Louis Post-Dispatch, Jul. 22)(& welcome Crime & Federalism, Wave Maker readers).

More: reader Mickey Ferguson asks whether Ritchie could have avoided the predicament by volunteering to the gun over to the court itself, as in a case of escrow, with the court then free to turn it over or not to the felon. Good question, but I for one don’t know the answer.

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“Doc: $2 mil. verdict proves my point”

As one might expect, spinal surgery does have a risk of spinal injury, including paralysis. Joliet neurosurgeon Thomas R. Hurley, president-elect of the shrinking Illinois State Neurosurgical Society, has an impressive safety record, performing well over 1000 spinal surgeries, with only one resulting in paralysis. Nevertheless, a Cook County jury decided that anything less than perfection was negligence, and awarded $2.3 million in damages to the family of the late factory worker Richard McCorry. McCorry was already wheelchair-bound from back pain when he had the surgery that paralyzed him. “As a result of the Tuesday verdict, Hurley’s annual medical malpractice insurance rates could jump from $245,000 a year to $300,000 or more, he said. … ‘Maybe I’ll go to another state where insurance will be $75,000.'” (Abdon M. Pallasch, Chicago Sun-Times, Jul. 28) (via ICJL). The press accounts mention the plaintiff’s attorney’s complaint that the case took ten years to try, but don’t mention that that was because the plaintiff changed his theory in 1999 and then chose to spend two and a half years trying to retroactively amend his complaint to add a new theory of liability against the deep-pocket non-profit hospital. McCorry v. Gooneratne (Ill. App. 2002); McCorry v. Evangelical Hospitals Corp. (Ill. App. 2002).

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“He grabbed girl’s arm — now he’s a sex offender”

The judge agreed that 28-year-old Fitzroy Barnaby of Evanston, Ill. probably didn’t have any sexual intention when he grabbed a 14-year-old girl’s arm to chastise her (he says) for walking in front of his car. But unlawful restraint of a minor, the offense of which Barnaby was convicted, automatically qualifies as a sex offense under Illinois law. “Now, [Barnaby] will have to tell local police where he lives and won’t be able to live near a park or school.” “I don’t really see the purpose of registration in this case. I really don’t,” said Cook County judge Patrick Morse. “But I feel that I am constrained by the statute.” (Steve Patterson, Chicago Sun-Times, Jul. 1).

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Update: Illinois Senate defeats gun-suit bills

On Apr. 7 I wrote (prematurely as it turned out) that the Illinois legislature had killed two bills which would have encouraged lawsuits against gun manufacturers and dealers, the bills having been defeated in the Judiciary committee of the Illinois Senate. Sought by Chicago Mayor Richard Daley, the bills were aimed in part at reviving his litigation against gun dealers and manufacturers, which had been thrown out by the state Supreme Court. However, Daley’s allies in the legislature hastily got a different committee in the state’s upper house, the Executive Committee, which is more heavily dominated by members from Chicago, to give its narrow approval to the measures in order to bring them to the floor (Brian Mackey, “Gun-control measures approved”, Copley/Peoria Journal-Star, Apr. 14). To no avail: the full Senate defeated both measures Thursday night by 24-31 votes. (John O’Connor, “Gun bills fail to pass Senate”, AP/Bloomington Pantagraph, Apr. 15).

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Upcoming events: Chicago, Orlando

Tomorrow (Friday, Apr. 8) I’m scheduled to participate in a panel discussion on medical malpractice at Chicago’s Union League Club, sponsored by various units of the University of Illinois (law school, medical school, Institute for Government and Public Affairs). And on Apr. 20 I’ll be giving a luncheon speech in Orlando to the Federalist Society Lawyers chapter there, on the themes of my most recent book The Rule of Lawyers. (Updated Apr. 9 to add Illinois web link and remove mention of a third appearance now likely to be canceled).

To book either Ted or me for speaking engagements, by the way, just send us email at the addresses indicated in the right-hand column.

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Gun roundup

Legislation is once again moving through Congress to pre-empt lawsuits which seek to saddle the manufacturers and lawful sellers of guns with the costs of crime. At the request of supporters of H.R. 800, the Protection of Lawful Commerce in Arms Act, I wrote a letter to the House Judiciary Committee explaining why such a bill is warranted now more than ever (longtime readers may recall that I testified on the Hill two years ago in favor of the measure). The new letter is here. (More: Mar. 15 hearings; chairman’s opening statement.)

Also, the Illinois legislature has soundly defeated efforts, backed by Chicago Mayor Daley and pro-gun-litigation groups, to alter state law so as to encourage lawsuits against gun dealers (“More Daley-backed gun bills go down in Senate committee”, AP/KWQC, Mar. 15; “House rejects measure to let victims sue gun dealers”, AP/KWQC, Apr. 6). (Update Apr. 16: backers revive measures, but they are defeated on floor of Ill. Senate). And David Hardy of the extremely promising-looking new blawg Arms and the Law finds that when law reviews present a viewpoint one-sidedly hostile to the right of individual gun ownership, it’s sometimes owing to the careful spadework of a generous outfit called the Joyce Foundation (Apr. 3)(further controversy on last point: here and here).

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