December 2016 Case Notes & Comments

"Of all the months of the year there is not a month one-half so welcome to the young, or so full of happy associations, as the last month of the year.... "
~ Charles Dickens

MONTHLY QUIZ: Just before leaving the North Pole to deliver presents, Rudolph rear ends the Gingerbread Man's cookie cart, which bumps into the Grinch's sleigh. Dasher, Dancer & Prancer take photos depicting the damage sustained by the sleighs and cart.  Grinch has no physical complaints at the scene, but seeks treatment at an urgent care facility in Whoville the next day. Eventually, Grinch undergoes two ankle surgeries and sues Santa. Santa admits Rudolph was not watching, but disputes the force of impact and Grinch's claimed damages. Before trial, Grinch files a motion in limine asking the court to bar Santa from presenting any photos depicting damage sustained by the sleighs or the cart. The trial court limits the use of the photos to show the "point of impact", but not to show the extent of damage. At trial, Grinch's attorney asks him to describe the damage and Grinch testifies that the collision is "violent." In response, Santa's attorney asks to show the photos to Santa and asks Santa to describe the damage. Grinch's attorney objects. The trial court allows the questioning, but does not allow the jury to see the photos. After a defense verdict, Grinch is mad that Santa's attorney mentioned the photos and demands a new trial. Is Grinch entitled to a new trial? You be the judge. (Answer below) 

UIM COVERAGE LITIGATION: Passenger sustained millions of dollars in injuries in an auto accident involving Driver A and Driver B. Passenger collected a total of $395,000 from both drivers, which effectively represented the limits of Driver A's policy ($100,000 limit) and Driver B's policy ($300,000 limit). Passenger submitted a claim to her Insurer for underinsured-motorist ("UIM") coverage, as she had $500,000 in coverage. Insurer took the position that it was only required to cover the difference between the total amount Passenger received from the drivers ($395,000) and Passenger's UIM policy limit ($500,000), and therefore owed Passenger $105,000. Passenger argued that the $500,000 UIM limit applied to each driver separately and that therefore, she was entitled to $400,000 in additional UIM coverage for Driver A (who paid $100,000) and $205,000 from Driver B (who paid $295,000), for a total of $605,000 in UIM coverage. The trial court agreed with Insurer and entered a judgment that Insurer owed Passenger $105,000. In reversing the trial court, the First District Appellate Court agreed with Passenger and held that each instance of underinsurance should have been considered individually. However, the appellate court also found that Passenger could not receive more than $500,000 from Insurer, which was the contracted limit and the amount upon which the policy premiums were based. Illinois Emcasco Insurance Co. v. Tufano, 2016 IL App (1st) 151196 (Sept. 8, 2016).

MEDICAL MALPRACTICE / INFORMED CONSENT-EXPERT EVIDENCE OF PROXIMATE CAUSATION NOT REQUIRED:  Parents, on behalf of minor child, filed a medical malpractice action against Doctor, an obstetrician, arising from a natural delivery that resulted in injuries to Child.  Plaintiffs' allege, in part, that due to Child's large gestational size, the standard of care required that Doctor discuss the risks and benefits of a natural birth versus C-section, and that Doctor was negligent in failing to secure informed consent for the natural birth.  A claim for lack of informed consent requires: (1) the physician's duty to disclose material risks; (2) a failure or inadequate disclosure of those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) injury by the proposed treatment.  Parents did not offer an expert to testify that a reasonable patient in Parents' position would have elected to have a C-section. At the close of Parents' case, Doctor moved for directed verdict as to the claim of lack of informed consent, arguing that the Parents failed to establish the third element, proximate causation, which the trial court granted.  The Fourth District Appellate Court reversed and remanded for a new trial, finding that expert testimony was not necessary to establish proximate causation. The appellate court reasoned that the members of the jury should use their own knowledge, experience and native common sense to determine whether, after proper disclosure, a prudent person would have proceeded with the proposed treatment. Crim v. Dietrich, 2016 IL App (4th) 150843 (Nov. 7, 2016).

SUMMARY JUDGMENT FOR DEFENSE-CATASTROPHIC INJURY BUT SPECULATIVE LIABILITY:  The First District Appellate Court examined the boundary between permissible inferences drawn from circumstantial evidence and impermissible speculation.  Plaintiff fell in the vestibule of an apartment building and sustained spinal injuries, rendering Plaintiff a quadriplegic.  There were no eyewitnesses to the fall, and Plaintiff had no memory of the incident, so he could not testify as to the causation.  Plaintiff filed a premises liability claim against Building Owner and Management Company, alleging that the improper design and maintenance of the vestibule, stairs, and doorway, which included code violations and tripping hazards, proximately caused his injuries.  Defendants moved for summary judgment arguing, among other things, that Plaintiff failed to prove the proximate causation of his injuries.  In responding to the motion for summary judgment, Plaintiff presented affidavits from three Experts who opined that the condition of the doorway, the threshold and/or door closure system were more likely than not the cause of Plaintiff's fall.  The trial court struck Experts'affidavits on the grounds that they were conjecture and speculative evidence and granted Defendants summary judgment. On appeal, the First District Appellate Court affirmed, commenting that what Experts found "likely" or "typical" was speculative and nothing but conjecture, especially given that the Plaintiff did not know the cause of the fall.  In addition, the Court held that the mere possibility of an unreasonably dangerous condition is not enough to establish a causal relationship between alleged negligence and injuries. Here, because Plaintiff could not "affirmatively and positively" show with "reasonable certainty" that he fell because he tripped over the threshold or was propelled forward by a door that closed too quickly,  circumstantial evidence as to the cause is insufficient to establish liability.  Berke v. Manilow, 2016 IL App (1st) 150397) (Aug. 23, 2016).

ANSWER TO QUIZ: Santa wins! Grinch is not entitled to a new trial. At trial, Santa's attorney only mentioned the photos after Grinch's attorney asked Grinch to describe the damage at the scene.  In this case, having Grinch describe the damage to the vehicles invited comment from Santa's counsel and Santa regarding the existence of photographs. The Grinch and his counsel cannot complain about supposed "errors" that they invited. Larkin v. George, 2016 IL App (1st) 152209 (Oct. 31, 2016).

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