January 2012 Case Notes & Comments

“If you can't be a good example, then you'll just have to be a horrible warning.” ~ Catherine Aird

MONTHLY QUIZ: Judge X convicts Defendant, following a criminal bench trial that lasts almost a year. Following the bench trial, Defendant discovers that Judge X’s adult daughters and son are Facebook® friends with an uncle of the victim, who testified against Defendant.  Defendant asks that the guilty finding against her be thrown out and for a new judge, arguing that these relationships were important because Judge X was being asked to rule on the credibility of witnesses in a highly disputed trial. In a two-page affidavit, Judge X attests that he did not know any of victim’s family members who testified and none of his children discussed the case with him. Further, Judge X states that “[s]ince [his] children are adults and living on their own, he no longer vet[s] their ‘friends’ and do[es] not utilize their 'electronic networking sites.” Does this situation create an “appearance of impropriety”? Should Judge X have recused himself? Is Defendant entitled to a new trial and/or a new judge? You be the judge. (Answer below.)


ILLINOIS COURT EXERCISES JURISDICTION OVER FOREIGN COMPANY - Manufacturer of tail-rotor components designs and sells drive-shaft bearings, custom made for a particular model helicopter, which vehicles are sold in the U.S. through a subsidiary. Pilot of Medical Air Service doing business in Illinois died in helicopter crash allegedly caused by custom made bearing and his Estate sues, claiming two grounds of specific jurisdiction under the Illinois Code of Civil Procedure as follows: 1) due to the commission of a tortious act within Illinois; and, 2) under a catchall provision which permits Illinois courts to exercise jurisdiction on any basis permitted under the due process clause of the U.S. Constitution. On review, the court found specific jurisdiction over Manufacturer under both provisions - first reasoning that since the injury occurred in Illinois, the tort occurred in Illinois. Court also found that Manufacturer had sufficient minimum contacts with Illinois, reasoning that company’s custom-made ball bearings were specifically designed and intended solely for this model helicopter and “became an inseparable part of the marketing plan.” According to the court, the helicopter was “the conduit” through Manufacturer’s bearings reached Illinois consumers. Russell v. SNFA, 2011 IL App (1st) 093012-B (1st Dist. Dec. 16, 2011)


SPOLIATION - GENERAL CONTRACTOR ASSUMES DUTY TO PRESERVE I-BEAM:General Contractor (GC) was rebuilding a bridge for Illinois Department of Transportation (IDOT) when an I-beam collapsed, causing three construction workers (Plaintiffs) to fall. The beam and its component bearing assembly were manufactured by two different companies. IDOT and OSHA investigated the accident the next day. Immediately following the investigation, GC broke the concrete portion of the beam so it could recycle the steel plates for use in a replacement beam. Plaintiffs and Manufacturers, in their counterclaims, sued GC for spoliation, alleging that the company should have preserved the beam. While there is generally no duty to preserve evidence in Illinois, a duty may arise by agreement, contract, statute, special circumstance, or voluntarily assumption of the duty by affirmative conduct. If a duty exists, then a “foreseeability” test is used to determine liability - i.e., whether a reasonable person should have foreseen that the evidence was material to a potential civil action.  Here, by preserving a portion of the beam for its own purposes, GC voluntarily undertook a duty to preserve the beam for potential litigants. Questions of fact remained regarding whether the beam was material to a potential civil action. Martin v. Keeley & Sons, Inc., 2011 IL App (5th) 100117 (5th Dist. Sept. 30, 2011). COMPARE / CONTRASTBrobbey v. Enterprise Leasing Co. of Chicago, Ill. App. 3d 420, 935 N.E.2d 1084 (1st Dist. 2010)(Prior notice of possible destruction no defense to spoliation claim)


PREMISES LIABILITY - ILLLINOIS SNOW & ICE REMOVAL ACT. Building Owner and Manager enter into contracts with two companies, one for snow removal from the parking lot, the other for janitorial services, which included snow removal from the front walk. However, neither contract provided for snow removal at the rear entrance. While snow removal contract provided for removal from other areas at extra cost and upon request, neither Owner nor Manager ever requested it. While attempting to use rear entrance sidewalk to get into the building, Resident slipped and fell on “icy snow mounds,” sustaining injuries. Trial Court granted Owner and Manager summary judgment pursuant to the Illinois Snow and Ice Removal Act (Act)(745 ILCS 75/2 (West 2008)), which provides, among other things, that owners and persons in charge of residential property who remove or attempt to remove snow or ice from sidewalks abutting the property shall not be liable for their omissions unless the alleged misconduct was willful or wanton. On appeal, court affirmed dismissal of Owner and Manger on the grounds that Owner and Manager’s failure to remove snow and ice mounds from the rear entrance sidewalk was an omission in their overall snow removal efforts within the meaning of the Act. Pikovsky v. North Skokie Blvd. Condominium Ass'n, Inc., 2011 IL App (1st) 103742 (1st Dist. Dec. 27, 2011) COMPARE / CONTRASTClaims One v. Professional Property Management, 2011 IL App (2d) 101115 (2nd Dist. Sept. 12, 2011)(Held - No voluntary undertaking by Property Manager to remove snow  from rear staircase)


LEAHY, EISENBERG & FRAENKEL, LTD. PARTNERS DESIGNATED ILLINOIS SUPER LAWYERS: Leahy, Eisenberg & Fraenkel, Ltd. is pleased to announce that two of its partners, Robert Ostojic and Roland S. Keske, were recently included on the 2012 Illinois Super Lawyers® list.


ANSWER TO QUIZ: Judge X did not have to recuse himself and Defendant was not entitled to a new trial. Reviewing Judge Y, who does not have a Facebook account, was unconvinced and found no impropriety, reasoning that forcing judges to check the hundreds of Facebook friends their family may have against a witness list before each bench trial is an impossible standard to impose. Further, in dismissing Defendant’s motion for a new judge, Judge Y commented that Defendant had only presented him with a “series of dots” unconnected to Judge X “under any standard.” State of Illinois v. Klein, 08 CF 568 (Will County, Ill. Dec. 15, 2011)