Writing Persuasively : William Lazarus, Attorney at Law

Pointers on Appeal

1. Consider whether the appeal makes sense. Why are you likely to beat the odds that the trial court will be affirmed? Do you have an issue particularly worthy of challenge? If so, is your case a good vehicle for raising that issue? If you’ve won below, what are the weak points in your position? Should you consider settling? Brainstorm these questions with someone who has an independent perspective.

2. Narrow the issues you take up on appeal. A scattershot approach imparts a message: you don’t have a weighty issue, so you throw in the kitchen sink. Worse, arguing the implausible will detract from your good arguments. Your goal is to win, not to make the most points. To do that

, you need to build your credibility. Senseless argument, and an unfocused approach undermine credibility. If you start off weak, a busy judge may quickly decide you have little merit to all of your argument. If you finish weak, your strong points may get lost in the mix. Go with your strengths.

3. Build the record right while litigating the case in the trial court. File exhibits with a title page complete with a case caption and identification of the underlying pleading, and make sure that page is file stamped, so that the exhibits become part of the common law record. Know that record, and prepare your appendix early. Having the documents together will help you organize your thoughts and size up key points of your argument and will reduce the time you spend finding and putting in citations to the record.

4. Quickly sketch out a rough draft, getting your thoughts down. Then write, rewrite and rewrite. Focus, organize, cut repetition.

5. Use an introduction to set out the heart of your argument. Consider placing points up high that will be raised in substantial detail later in the brief. Give the judges a roadmap to what’s coming.

6. Consider adopting your opponent’s organization, point by point. This will make it easier for the judges to follow your brief. Also consider the downsides. It may, for instance, not make sense to start off on your weak foot. But look again. Sometimes your opponent’s ostensible strengths turn out to be his weaknesses. Find the weak chink and the armor can be penetrated. And what appears to be a weak point for you often turns out to have a hidden strength. Your opponent is likely to play his strong arguments first. If you can deflect your opponent’s key argument at the outset, you will quickly establish credibility, and will be in an excellent position to proceed with your strong points.

7. Address the standard of review for each of your arguments. Don’t fudge, but do think about alternative perspectives. If you are the appellant, consider whether a way exists to turn deferential review into de novo review. For instance, review of the grant of summary judgment is usually deferential. But perhaps the summary judgment turned on the interpretation of a statute. You can argue that statutory interpretation calls for de novo review.

8. Set forth the facts dispassionately. Show, don’t tell. Let the facts speak for themselves. Juxtapose facts that raise doubts about your opponent’s credibility. Don’t say, “Appellant falsely claims it was pitch dark when he ran over the pedestrian.” Say: “While Appellant asserts it was pitch dark outside when he struck the pedestrian at midnight, National Weather Service data confirm the recollection of bystander John Campbell that the night was clear, and the moon full.”

9. Watch the words. Strike clearly from your vocabulary. Remember, it signals the opposite. Cut conclusory and weighted adverbs, like amazingly, incredibly, outrageously, etc. They undermine credibility. Watch for the passive tense. “There are” few reasons to ever use that phrase. Employ strong verbs. Avoid absolutes. Pare down verbiage, and clutter. Consider citing only to the Illinois official reporter, as allowed by Supreme Court Rule 6.

10. Forgo personal attacks. Be an advocate, but be fair. That’s more likely to win the hearts and minds of your readers on the bench.

Focus on drunk driving

The body of the amicus brief written by William Lazarus and submitted to the Illinois Supreme Court by ITLA follows:

Overview

On Stage Productions, Inc. banks on its own lawlessness in arguing that its wanton behavior is immune from the rule of law. While suggesting that plaintiffs may sue the store that sold the bottles of Captain Morgan rum and Grey Goose vodka that John D. Homatas and John D. Chiariello brought into its Diamonds Gentlemen’s Club on January 4, 2006 (Br. 16), On Stage asserts that because it did not have a license to sell liquor, it cannot be held responsible for encouraging Homatas and Chiariello to drink beyond drunkenness, its ensuing ejection of the men from the club, and its direction that Homatas drive away with his friend sitting beside him. Homatas became persona non grata after he became so sick from drink[1] that he vomited in the club’s bathroom. Rather than deal with more unpleasantness or even take the time to order a taxi, On Stage opted to require Homatas to break the law and drive away drunk, to the grave endangerment of the driving public, and resulting in the deaths of Chiariello, April Simmons and her 8.5-month old daughter in utero, Addison Elizabeth.

Challenging the appellate court’s determination that it may be held liable for its in-concert activity under principles set forth in §876 of the Restatement (Second) of Torts, On Stage bluntly asserts, “The allegations that On Stage brought Homatas’s car to him, opened said door, and directed him to leave cannot be deemed ‘substantial assistance’.” (Br. 46) Plaintiffs’ complaints, however, do not state or suggest that Homatas wanted to leave the club or would have been able to find or even get into his car without the assistance of the club’s valet. Homatas’ illegal drive, and the ensuing tragedy, would not have occurred without the club’s encouragement, under the facts of the complaints viewed in the light most favorable to the plaintiffs. Even if On Stage’s actions were not deemed to constitute substantial assistance or encouragement under Restatement §876(b), the club would still be liable under §876(a) for its tortious act done in-concert with Homatas. The club ordered Homatas to leave the club and drive away in violation of the law, and Homatas obeyed. The resulting loss of life was utterly foreseeable, which is why drunk driving is a crime.

On Stage seeks to avoid responsibility for its actions with a sweeping argument that would elevate dicta into inexorable and unchallengeable legal principle and warp the concept of probable cause beyond the bounds of precedent, reason and common sense. It also seeks to avoid responsibility by predicting a parade of horribles if this Court upholds the trial and appellate court decisions below. However, under the narrow facts and extraordinarily egregious circumstances of this case, declining defendant’s motion to dismiss will not lead to sweeping and unpredictable changes contrary to prior holdings of this Court. This case does not involve a licensed purveyor of liquor. Nor does it involve a social host. Licensed taverns will continue to enjoy the protections, along with shouldering the burdens, imposed by the Dramshop Act. Social hosts will continue to be afforded the same immunities they have enjoyed thus far.

On Stage allegedly operated its striptease club without a liquor license as a premeditated way of avoiding responsibility and maximizing profits to the grave expense of the traveling public. On Stage then ordered (the Chiariello complaint) or effectively required (the Simmons complaint) its extremely intoxicated customer to break the law and drive away. At this stage, all the plaintiffs’ allegations must be taken as true and considered in the light most favorable to them. Jarvis v. S. Oak Dodge, 201 Ill. 2d 81, 86 (Ill. 2002). Allowing On Stage to be held accountable for its wrongful actions does not result in any departure, much less a radical departure, from the rule of law. To the contrary, it enables application of well established common law principles to restrain lawless behavior that threatened life and led to death.

The factual allegations of both the Homatas and the Simmons complaints amount to allegations of substantial assistance or encouragement sufficient to support liability under the principles stated in the Restatement (Second) of Torts §876(b). They also support allowing a jury to find liability under §876(a) since On Stage directed Homatas to commit a crime in ordering him to leave the club and drive away when he was intoxicated. In ordering violation of the law against driving while intoxicated, On Stage became a participant in the crime. The excuse, “I was only following orders” does not justify commission of a crime and insulate the actor from liability for the resulting injury. The assertion, “I was only giving the orders” cannot excuse the person who directs the crime. See Lambert v. Lake Forest, 186 Ill. App. 3d 937, 944 (2^nd Dist. 1989) Thus, under the explicit allegations of the Chiariello complaint, On Stage may be held liable for its in-concert action under §876(a) of the Restatement as well as under §876(b). So, too, with the Simmons complaint. In addition to detailing substantial assistance or encouragement, the Simmons allegations that On Stage required Homatas and Chiariello to leave the club, brought around Homatas’ vehicle, and allowed Homatas to drive away are tantamount to a requirement that he commit the crime of drunk driving, given the totality of the circumstances viewed in the light most favorable to plaintiffs.

The appellate court aptly details the allegations of the plaintiffs. Simmons v. On Stage Productions, Inc., 386 Ill.App.3d 998, 999-1001 (2d Dist. 2008). The Illinois Trial Lawyers Association adopts those allegations, including the court’s conclusion that On Stage allegedly required that Homatas drive away while he was extremely intoxicated.

ARGUMENT

I. On Stage overstates preemption.

On Stage quotes no language in the Illinois Dram Shop Act, Liquor Control Act or any other law to show any legislative intent to preempt the plaintiffs’ common law action against it. Rather, it argues that Illinois courts long have “consistently ruled that the field of alcohol related liability is preempted by legislation and have consistently refused to recognize any cause of action for alcohol related liability beyond those explicitly provided for by the General Assembly.” (Br. at 4.) While On Stage invokes dicta in Wakulich v. Mraz 203 Ill.2d 223 (2003), and other cases to support its claim, the holding in Wakulich itself shows the sweeping dicta does not reflect the reality, but is restricted to cases involving taverns and social hosts selling or giving away alcohol, and even then the dicta is overbroad. In this case, On Stage neither sold nor gave away alcohol, so its claim of absolute preemption is not well founded. Most importantly, On Stage’s liability independently arises under the common law as a result of its in-concert acts in assisting, encouraging, and directing Homatas’ drunk driving.

On Stage correctly comments that this case is alcohol related. So was Wakulich, where plaintiffs alleged that defendants had induced Elizabeth Wakulich to drink herself into a coma, and then voluntarily undertook to care for her in a negligent fashion, resulting in her death. While the Court held to social host preemption, finding that the defendants could not be liable as a result their provision of alcohol to Elizabeth, it allowed plaintiffs to proceed under their common law claim of negligent care.

In this case, as On Stage points out, it would be “specious” to argue that plaintiffs’ complaints in this action are not related to alcohol. (Br. at 12) The same would be true as to Wakulich. Yet, the Court allowed the possibility of recovery under a common law theory separate from the question of the gift or sale of alcohol. Other courts have similarly allowed actions to proceed on independent common law grounds despite facts showing that the cases were alcohol related. See e.g. Harris v. Gower, Inc., 153 Ill. App. 3d 1035 (5^th Dist. 1987) (complaint against tavern allowed based on its negligent care of plaintiff’s deceased after he lost consciousness from drink); Shortall v. Hawkeye’s Bar and Grill, 283 Ill. App.3d 439 (1^st Dist. 1996) (summary judgment reversed as to tavern accused of exposing patrons to a third-party criminal attack in the form of a brawl outside its door); Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity, 155 Ill. App. 3d 231 (4^th Dist., 1987) (action allowed for injury resulting from alcohol related hazing incident); Haben v. Anderson, 232 Ill.App.3d 260 (3d Dist. 1992) (action allowed for death resulting from alcohol related hazing incident). This Court discussed Haben and Quinn in depth, without finding the decisions need to be overturned. Wakulich, 223 Ill.2d 239.

In Quinn, the appellate court found that an 18-year-old plaintiff, who was required to drink to the point of extreme intoxication and neurological damage in order to enter a fraternity, was entitled to sue the fraternity. Despite acknowledging the recognized rule of preemption as to social hosts and dram shops, the court allowed the action to proceed, and stated:

We agree with the case authorities holding that the furnishing of intoxicating beverages to underage persons, such as plaintiff, does not create a legal duty. We feel, however, that we are faced with a situation which consists of more than the mere furnishing of alcohol. The facts, as alleged in plaintiff’s amended complaint, describe a fraternity function where plaintiff was required to drink to intoxication in order to become a member of the fraternity. Even worse, according to the complaint, the alcohol content in plaintiff’s body was “at or near fatal levels.” We cannot close our eyes to the fact that the abuse illustrated in the present case could have resulted in the termination of life and that plaintiff was coerced into being his own executioner. Therefore, we hold that a legal duty was created and the complaint states a cause of action in negligence.

Id. at 237. (emphasis added)

In this case, while Homatas was not required to drink to the point of extreme intoxication, he was encouraged to do so, and then he was required to leave the club and drive away, and, thus, was coerced into being his friend’s executioner, as well as that of April and Addison Elizabeth Simmons. The court distinguished Quinn from social host and tavern cases preempting common law liability by noting the combination of the alleged requirement of extreme drinking along with the violation of an anti-hazing statute designed to protect human life. Here, the alleged facts show On Stage as part of its business plan encouraged extreme drinking beyond drunkenness, and then required violation of drunk driving laws designed to protect the lives of all motorists and their passengers.

In Haben, a hazing case involving death from acute intoxication, the court found that allegation of a “de facto” requirement for drinking was sufficient to satisfy the Quinn standard since “[i]f both the candidate for initiation and the persons performing the initiation believe that drinking is required, it makes little difference whether the requirement is informal or de facto.” Id. at 659. Here, under the allegations of the Simmons complaint, the club required Homatas and Chiariello to leave and brought Homatas’ car around. Interpreted in a manner most favorable to plaintiffs, these allegations show the club created the conditions under which a normal highly intoxicated person (or for that matter even a sober person) would believe he was required to drive away. Thus, the Simmons complaint alleges an improper requirement in violation of a public safety law at least as strongly as the allegation of a “de facto” requirement of extreme drinking in violation of anti-hazing law in Haben.

Unlike here, defendants in Wimmer v. Koenigseder, 108 Ill.2d 425 (1985), were taverns – a class of defendant to which Illinois courts have consistently applied preemption in cases alleging injury caused by drunken driving. More importantly, the plaintiff in Wimmer made no allegation that either of the two taverns directed the drunken driver responsible for the crash that killed plaintiff’s deceased to leave and drive away. On Stage frets that any tavern that tells its customers to leave at closing time will be subject to liability if this case goes forward. But that’s not the same as a striptease club ejecting a customer who is sick drunk, bringing around his car, helping him get in, and requiring him to drive away.

In Wienke v. Campaign County Grain Association, 113 Ill.App.3d 1005 (4^th Dist. 1983), the employer played the role of social host in holding an event for its employees. Thus, the case falls under the preemption rule broadly mandated by this Court as to social hosts. Unlike in this case, no allegation was made in Wienke that the employer ordered or required the drunken driver to leave the function and drive away. To the extent that this Court, in retrospect, might determine that the “substantial assistance or encouragement” section of Restatement (Second) of Torts §876(b) would have or should have applied in Wienke or in Wimmer, ITLA respectfully requests the Court provide guidance on the matter. But even without §876(b), On Stage could properly be found liable by a jury under §876(a).

II. On Stage acted in concert with Homatas.

The Restatement of Torts provides as follows as to in-concert liability:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.”

Restatement (Second) of Torts §876, at 315 (1979). (emphasis added)

As to clause (a), the Restatement comments:

Parties are acting in concert when they act in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. The agreement need not be expressed in words and may be implied and understood to exist from the conduct itself. Whenever two or more persons commit tortious acts in concert, each becomes subject to liability for the acts of the others, as well as for his own acts. The theory of the early common law was that there was a mutual agency of each to act for the others, which made all liable for the tortious acts of any one.

Id. at Comment (a). (emphasis added)

A. On Stage may be held liable under §876(a) of the Restatement.

Here, the agreement was shown by action. On Stage directed Homatas to leave the club and drive away, and Homatas complied. Its direction and his obedience were both tortious as well as criminal acts since drunk driving is a crime under 625 ILCS 5/11-501, as well as being extremely dangerous. With the action prong of §876(a) fulfilled, no premeditated “common design” is necessary since that phrase follows the disjunctive word “or”. Of course, neither On Stage nor Homatas specifically intended to kill anybody. But intent to kill, maim or otherwise harm is not a requirement. In Scott v. Aldi, 301 Ill.App.3d 459 (1^st Dist. 1998), the court allowed plaintiff’s conspiracy claim to proceed against a supermarket whose employee escorted the plaintiff from the store to an unlicensed taxi. The plaintiff, who suffered injury when the taxi crashed, alleged that Aldi, through its agents, entered into a conspiracy to operate an unlawful vehicle-for-hire. The court of appeals reversed the trial court’s dismissal of the conspiracy count, finding that the operation not only was illegal but was tortious conduct, given the public safety purpose of the statute requiring cabs to be licensed. Id. at 529. In Scott, the plaintiff, of course, made no allegation that defendants intended that she be injured. Such intent is rare. Even in the case of Woods v. Cole, 181 Ill.2d 512 (Ill. 1998), the defendant was only accused of negligently loading a firearm and encouraging another to pull the trigger for the purpose of scaring plaintiff’s deceased, not for the purpose of killing him. If intent to maim or kill were a requirement, few, if any, of the §876(a) cases allowed to go to trial would have survived a motion to dismiss.

Here, similar to Scott, plaintiffs allege that On Stage engaged in a tortious course of conduct by requiring Homatas to leave the club and drive away from the club drunk. As in Scott, the law that On Stage and Homatas violated as to Homatas’ drunk driving was a public safety statute. As in Scott, their alleged, in-concert violation of the statute is actionable. Requiring someone to commit a crime is itself actionable. See Lambert v. Lake Forest, 186 Ill. App. 3d 937, 944 (2d Dist. 1989).

B. On Stage may be held liable under §876(b) of the Restatement.

On Stage also substantially encouraged Homatas’ tortious behavior in accord with its premeditated business plan to encourage customer drinking to the point of extreme intoxication and sickness. Under the allegations, On Stage opted to be a full nudity club for the purpose of avoiding the requirements imposed by the Dramshop Act. That way its servers would not have to undergo the training that would help them spot and curb excessive drinking. That way, the alcohol would flow freely – only hard liquor allowed – and customers would tip the dancers more and buy more mixers, all to the profit of the club. On Stage’s plan to substantially encourage excessive drinking, and the inevitable illegal driving that followed, was carried out during Homatas’ and Chiariello’s two-hour stint of drinking and ordering dancers to come to their table. Under the allegations of the Simmons complaint, its substantial encouragement continued after the club ejected Homatas and his friend, brought Homatas’ vehicle, opened the door and allowed him to drive away. In doing this, the club was not operating as a licensed tavern. Nor was it playing the role of social host. Rather, On Stage was engaging in its for-profit business in a manner that reflected its wanton disregard of human life.

In its comment regarding in-concert conduct as substantial assistance or encouragement, the Restatement states:

Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance. If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other’s act.

Comment b, Restatement (Second) Torts §876(b). Under plaintiffs’ allegations, the club knew that Homatas was extremely intoxicated, and should not be driving. The drive itself was a tortious act. The drive itself foreseeably led to the tragedy that followed. Whether the club ordered Homatas to drive away or simply ordered him out, brought his car around, opened the door and allowed him to leave, the club substantially encouraged Homatas’ tortious conduct, and, thus, can be held liable under part (b) of the Restatement (Second) of Torts §876. Because the club was neither giving away nor selling liquor, the preemption cases on which On Stage relies simply do not apply.

Nor does it matter that the club itself was not present at the scene when the predictable crash occurred. In Clausen v. Carroll, 291 Ill.App.3d 530 (2d Dist. 1997), the court determined that the substantial encouragement given by the defendant, a participant in drag racing, made the defendant Ryan Chapman subject to liability under §876. The drag race itself was the tortious conduct. It did not matter that Chapman was not involved in the subsequent crash. The court explained:

We believe that a drag race is a joint venture where all participants have encouraged one another to engage in reckless conduct. …

A review of the record in the instant case demonstrates the existence of facts from which a jury could reasonably conclude that, at the time of the collision, Chapman and Carroll were engaged in a joint concerted tortious activity. …

Furthermore, even if the collision did not occur while Chapman and Carroll were actually engaged in the alleged race, there is evidence from which a jury could conclude that the collision was a natural or foreseeable result of the alleged race.

Id. at 539-540.

The court in Clausen noted that its decision was a logical extension of Sanke v. Bechina, 216 Ill.App.3d 962 (2^nd Dist. 1991), where a passenger in the car through comments and gestures had substantially encouraged the driver’s reckless driving. In Sanke, the court stated that

a person other than the driver is not held liable for damages caused by negligent acts of the driver unless that person is the owner of the vehicle or has the right to control that vehicle … However, plaintiffs in this case are not asserting Bechina had a duty to control Schwartz in order to prevent him from driving in a reckless manner. Instead they assert Bechina himself is a contributing tort-feasor.

Id. at 963-964. The court agreed, finding that plaintiffs had stated a viable claim with respect to the passenger’s own alleged wrongful acts, and that “[t]he determination of whether Bechina’s conduct constituted ‘substantial encouragement’ is a question of fact for the jury.” Id. at 972. Here, too, plaintiffs state a viable claim in alleging the club’s wrongful and substantial encouragement of drunken driving, and the question of whether the club’s conduct constituted such substantial encouragement or otherwise constituted participation in the tortious crime of drunk driving is one for the jury.

The situation here is readily distinguishable from that of Umble v. McKie and Sons, 294 Ill.App.3d 449 (2^nd Dist. 1998). In that case, the repair shop simply fixed the driver’s car and returned the keys to him as it was required to do or face the possibility of a conversion action. Unlike here, the repair shop did not substantially encourage the driver to drink any alcohol, much less to drink to the point of extreme intoxication and sickness. Nor did the repair shop require the driver to leave and to drive away. As the court noted, “The complaint contains no allegation that any of defendant’s employees actively encouraged Butzen to get back in his car and drive. We do not equate failing to prevent certain conduct from actively encouraging that conduct.” Id. at 451-452. In contrast, here, under both the Chiariello and Simmon complaints, On Stage actively and substantially encouraged Homatas to drink to extreme excess and to drive away drunk. Under the allegations, On Stage did not have to undertake any “problematic” determination to figure out whether Homatas was drunk. After all, On Stage ejected him because he was so sick from intoxication that he vomited in its bathroom. On Stage acted in an attempt to rid itself of the problem posed by a drunken customer – a problem it played a significant and premeditated role in creating. The alleged participatory acts of On Stage were inherently wanton and wrongful; not so with the alleged acts of the repair shop in the Umble case. That makes all the difference.

III. On Stage’s actions proximately caused the deaths at issue.

In Claussen, 291 Ill.App.3d at 540, the court found that the crash that injured the plaintiff was “was a natural or foreseeable result of the alleged race” and, thus, that Chapman’s involvement in the prior drag race was a proximate cause of plaintiff’s injuries, even though Chapman was not driving a vehicle involved in the crash. His substantial encouragement of the tortious activity was enough to find legal causation.

The same is true here. As the appellate court noted, On Stage doesn’t challenge the existence of the cause-in-fact prong of proximate cause that ‘but for’ its actions the crash would not have occurred. Nothing in the pleadings indicates that Homatas wished to leave the club or would have been able to get into his car without assistance at the time that On Stage ejected him and his friend Chiariello, and helped Homatas get behind the wheel. As to legal cause, as a matter of common sense, the appellate court was right in concluding that “not only was the action foreseeable, but in this case it was nearly predictable.” Simmons, supra, 368 Ill.App.3d at 1009. It was the club’s substantial assistance in encouraging Homatas to become drunk to the point of sickness and then in requiring him to leave and drive away – and not the provision of alcohol – that served as a proximate cause of the crash. Id.

In fact, On Stage itself didn’t even provide the hard liquor that Homatas and his friend drank, so the preemption-based cases cited by defendant that ascribe proximate cause solely to the person who imbibes and not to the bar that sells or the host who gives away alcohol cannot determine the issue. While it might normally seem, aside from the preemption rule, that the provider of alcohol would, if anything, be arguably more responsible for proximately causing a drunken driving crash, On Stage’s business plan was predicated on an ironic paradox: because it could not serve liquor, it could encourage excessive drinking with abandon. But its plan turns on a wooden adherence to preemption, and disregard of common law, contrary to the teachings of Wakulich. Under the allegations in this case, the club encouraged and required Homatas to commit the tortious crime of drunk driving, and, thus, the club must share in the blame for proximately causing the ensuing, predictable crash.

Defendant’s argument that it can’t be held liable because Homata’s criminal act of driving drunk broke the chain of causation makes no sense given that the club directed that criminal act. After all, even a defendant’s mere negligence enabling the commission of a criminal act by a third party may suffice to support a finding of proximate cause and liability. Thus a taxi company whose driver left his cab running with the key in its ignition contrary to statute could be sued despite defendant’s objection that a thief’s act of stealing the cab before crashing it broke the chain of causation. The question of proximate cause was for the jury to decide. Ney v. Yellow Cab, 2 Ill.2d 74, 84 (1954). In this case, the issue of causation is simpler since On Stage required Homatas to violate the law and drive while he was extremely intoxicated. The cabbie in Ney enabled the thief, while On Stage both enabled and ordered Homatas’ violation of the law.

IV. Simmons’ lack of a “special relationship” with On Stage makes no difference.

Brewster v. Rush-Presbyterian-St. Luke’s Med. Ctr., 361 Ill.App.3d 32 (1^st Dist. 2005), does not meet the criteria of §876(a) because the hospital was not acting tortiously in concert with anyone in simply requiring its resident to work a 36-hour shift. On Stage’s claim that the case would have been no different had the hospital known the resident was driving and told her to go home and get some rest is mere speculation since no such facts were alleged. Nor does Brewster meet the criteria of §876(b) because no evidence indicated that the resident’s staying up to work long hours constituted a breach of any duty. In fact, the case did not address in-concert liability at all. Brewster did find that there was no private right of action under the duty hour requirements for residents under the Hospital Licensing Act because the act was enacted to protect hospital patients, not the public in general. Here, in contrast, the law against drunk driving is designed to protect the traveling public – a class that included both Chiariello and the Simmonses.

Defendant also relies upon Iseberg v. Gross,227 Ill.2d 78 (2007), for its no-special-duty argument. In that case, two business partners of the claimant learned of threats by a former business partner to harm him. After he was shot and wounded, Mitchell Iseberg sued the two partners for not warning him or informing the police of the threats. The Court concluded that the defendants had no duty to do so without a special relationship with Iseberg that would have required such a warning. In so holding, the Court distinguished Iseberg from cases where, as here, the defendant was alleged to have engaged in some “negligent affirmative conduct”. Id. at 97. In Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414 (2004), for instance, the Court allowed a wrongful death action by the estate of an individual who was murdered by the beneficiary of a life insurance policy who took out the policy, unknown to the insured, in the insured’s name. Under the alleged facts, the insurer’s agent was affirmatively negligent in falsely representing on the policy application that he had witnessed the signature of the proposed insured.

Under the alleged facts of this case, On Stage was affirmatively negligent in first encouraging Homatas to drink liquor to the point of extreme intoxication, and then in encouraging and requiring him to drive away drunk. In these circumstances, as in Bajwa, On Stage itself was affirmatively negligent, so no special relationship need be established between it and the Simmonses for them to have a viable claim against the striptease club.

On Stage separately relies on social host cases in arguing that a special relationship must be established. But those cases are readily distinguishable since, as discussed, preemption applied, making causation a moot issue. The same distinction applies to the tavern and social host cases defendant cites in claiming that Illinois courts have held that imputing a duty under the circumstances presented here is improper. (Br. at 30, et seq.) Under the extraordinary facts alleged by plaintiffs, the finding of duty is appropriate. Not only were the resulting deaths entirely foreseeable, indeed predictable, but considerations of public policy favor imposing a duty. On Stage allegedly followed a clever business plan where the booze flowed freely at the encouragement of its servers, where the dance girls got big tips, and where the club shared in the substantial profits. Under its plan, On Stage created the wild, wild Midwest in West Chicago. It encouraged its customers to live it up – live it up at the expense of the deaths John Chiariello, April and Addison Elizabeth Simmons, and untold others who were killed or maimed as a result. Considerations of public policy and fairness, as well as common law principles set forth in the Restatement (Second) of Torts §876, cry out for imposing the rule of law to rein in this defendant.

CONCLUSION

WHEREFORE, the Illinois Trial Lawyers Association asks that the Court affirm the trial court’s and appellate court’s denial of defendant’s motion to dismiss as to all plaintiffs, without regard to plaintiff John A. Chiariello’s status as a customer of On Stage’s striptease club.

Respectfully submitted,

Illinois Trial Lawyers Association

By: William Lazarus

Certificate of Compliance

I, William Lazarus, an attorney, certify that this brief conforms to the requirements of Supreme Court Rules 341(a) and (b). The length of this brief, excluding the Rule 341(h)(1) statement of points and authorities, this Rule 341(c) certificate of compliance, and the certificate of service is 19 pages.

___________________________________

William Lazarus

Certificate of Service

I, William Lazarus, an attorney, certify that I caused copies of the foregoing amicus brief to be served upon the persons listed below by mailing, first class postage prepaid, by placing a copy of the brief in a U.S. Postal Service mail receptacle located at the post office at 1921 Ridge Road in Homewood, Illinois 60430 before 4 p.m. on October 5, 2009.

___________________________________

William Lazarus

Matthew G. Burke

Heineke & Burke, LLC

2 North LaSalle Street

Suite 1110

Chicago, Illinois 60602

Craig S. Mielke

Foote, Meyers, Mielke & Flowers, LLC

28 N. First Street, Suite 2

Geneva, Illinois 60134

Robert L. Speers

Timothy J. Reuland

Julie L. Cibulskis

Speers, Reuland & Cibulskis, p.c.

54 West Downer Place

Aurora, Illinois 60506

[1] Without citing anything in the record in this case, because no such record exists, On Stage claims that Homatas was driving under the influence of cocaine as well as alcohol. (Br. 47) Defendant does not state whether one of its agents or someone else supplied the illicit drug to Homatas before it directed him to drive away. In any event, alleged facts outside the record are not appropriately before this Court.

High court rejects immunity claim

Overview

On Stage Productions, Inc. banks on its own lawlessness in arguing that its wanton behavior is immune from the rule of law. While suggesting that plaintiffs may sue the store that sold the bottles of Captain Morgan rum and Grey Goose vodka that John D. Homatas and John D. Chiariello brought into its Diamonds Gentlemen’s Club on January 4, 2006 (Br. 16), On Stage asserts that because it did not have a license to sell liquor, it cannot be held responsible for encouraging Homatas and Chiariello to drink beyond drunkenness, its ensuing ejection of the men from the club, and its direction that Homatas drive away with his friend sitting beside him. Homatas became persona non grata after he became so sick from drink that he vomited in the club’s bathroom. Rather than deal with more unpleasantness or even take the time to order a taxi, On Stage opted to require Homatas to break the law and drive away drunk, to the grave endangerment of the driving public, and resulting in the deaths of Chiariello, April Simmons and her 8.5-month old daughter in utero, Addison Elizabeth.

Challenging the appellate court’s determination that it may be held liable for its in-concert activity under principles set forth in §876 of the RESTATEMENT (SECOND) OF TORTS, On Stage bluntly asserts, “The allegations that On Stage brought Homatas’s car to him, opened said door, and directed him to leave cannot be deemed ‘substantial assistance’.” (Br. 46) Plaintiffs’ complaints, however, do not state or suggest that Homatas wanted to leave the club or would have been able to find or even get into his car without the assistance of the club’s valet. Homatas’ illegal drive, and the ensuing tragedy, would not have occurred without the club’s encouragement, under the facts of the complaints viewed in the light most favorable to the plaintiffs. Even if On Stage’s actions were not deemed to constitute substantial assistance or encouragement under RESTATEMENT §876(b), the club would still be liable under §876(a) for its tortious act done in-concert with Homatas. The club ordered Homatas to leave the club and drive away in violation of the law, and Homatas obeyed. The resulting loss of life was utterly foreseeable, which is why drunk driving is a crime.

On Stage seeks to avoid responsibility for its actions with a sweeping argument that would elevate dicta into inexorable and unchallengeable legal principle and warp the concept of probable cause beyond the bounds of precedent, reason and common sense. It also seeks to avoid responsibility by predicting a parade of horribles if this Court upholds the trial and appellate court decisions below. However, under the narrow facts and extraordinarily egregious circumstances of this case, declining defendant’s motion to dismiss will not lead to sweeping and unpredictable changes contrary to prior holdings of this Court. This case does not involve a licensed purveyor of liquor. Nor does it involve a social host. Licensed taverns will continue to enjoy the protections, along with shouldering the burdens, imposed by the Dramshop Act. Social hosts will continue to be afforded the same immunities they have enjoyed thus far.

On Stage allegedly operated its striptease club without a liquor license as a premeditated way of avoiding responsibility and maximizing profits to the grave expense of the traveling public. On Stage then ordered (the Chiariello complaint) or effectively required (the Simmons complaint) its extremely intoxicated customer to break the law and drive away. At this stage, all the plaintiffs’ allegations must be taken as true and considered in the light most favorable to them. Jarvis v. S. Oak Dodge, 201 Ill. 2d 81, 86 (Ill. 2002). Allowing On Stage to be held accountable for its wrongful actions does not result in any departure, much less a radical departure, from the rule of law. To the contrary, it enables application of well established common law principles to restrain lawless behavior that threatened life and led to death.

The factual allegations of both the Homatas and the Simmons complaints amount to allegations of substantial assistance or encouragement sufficient to support liability under the principles stated in the RESTATEMENT (SECOND) OF TORTS §876(b). They also support allowing a jury to find liability under §876(a) since On Stage directed Homatas to commit a crime in ordering him to leave the club and drive away when he was intoxicated. In ordering violation of the law against driving while intoxicated, On Stage became a participant in the crime. The excuse, “I was only following orders” does not justify commission of a crime and insulate the actor from liability for the resulting injury. The assertion, “I was only giving the orders” cannot excuse the person who directs the crime. See Lambert v. Lake Forest, 186 Ill. App. 3d 937, 944 (2nd Dist. 1989) Thus, under the explicit allegations of the Chiariello complaint, On Stage may be held liable for its in-concert action under §876(a) of the RESTATEMENT as well as under §876(b). So, too, with the Simmons complaint. In addition to detailing substantial assistance or encouragement, the Simmons allegations that On Stage required Homatas and Chiariello to leave the club, brought around Homatas’ vehicle, and allowed Homatas to drive away are tantamount to a requirement that he commit the crime of drunk driving, given the totality of the circumstances viewed in the light most favorable to plaintiffs.

The appellate court aptly details the allegations of the plaintiffs. Simmons v. On Stage Productions, Inc., 386 Ill.App.3d 998, 999-1001 (2d Dist. 2008). The Illinois Trial Lawyers Association adopts those allegations, including the court’s conclusion that On Stage allegedly required that Homatas drive away while he was extremely intoxicated.

ARGUMENT
I. On Stage overstates preemption.
On Stage quotes no language in the Illinois Dram Shop Act, Liquor Control Act or any other law to show any legislative intent to preempt the plaintiffs’ common law action against it. Rather, it argues that Illinois courts long have “consistently ruled that the field of alcohol related liability is preempted by legislation and have consistently refused to recognize any cause of action for alcohol related liability beyond those explicitly provided for by the General Assembly.” (Br. at 4.) While On Stage invokes dicta in Wakulich v. Mraz 203 Ill.2d 223 (2003), and other cases to support its claim, the holding in Wakulich itself shows the sweeping dicta does not reflect the reality, but is restricted to cases involving taverns and social hosts selling or giving away alcohol, and even then the dicta is overbroad. In this case, On Stage neither sold nor gave away alcohol, so its claim of absolute preemption is not well founded. Most importantly, On Stage’s liability independently arises under the common law as a result of its in-concert acts in assisting, encouraging, and directing Homatas’ drunk driving.

On Stage correctly comments that this case is alcohol related. So was Wakulich, where plaintiffs alleged that defendants had induced Elizabeth Wakulich to drink herself into a coma, and then voluntarily undertook to care for her in a negligent fashion, resulting in her death. While the Court held to social host preemption, finding that the defendants could not be liable as a result their provision of alcohol to Elizabeth, it allowed plaintiffs to proceed under their common law claim of negligent care.

In this case, as On Stage points out, it would be “specious” to argue that plaintiffs’ complaints in this action are not related to alcohol. (Br. at 12) The same would be true as to Wakulich. Yet, the Court allowed the possibility of recovery under a common law theory separate from the question of the gift or sale of alcohol. Other courts have similarly allowed actions to proceed on independent common law grounds despite facts showing that the cases were alcohol related. See e.g. Harris v. Gower, Inc., 153 Ill. App. 3d 1035 (5th Dist. 1987) (complaint against tavern allowed based on its negligent care of plaintiff’s deceased after he lost consciousness from drink); Shortall v. Hawkeye’s Bar and Grill, 283 Ill. App.3d 439 (1st Dist. 1996) (summary judgment reversed as to tavern accused of exposing patrons to a third-party criminal attack in the form of a brawl outside its door); Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity, 155 Ill. App. 3d 231 (4th Dist., 1987) (action allowed for injury resulting from alcohol related hazing incident); Haben v. Anderson, 232 Ill.App.3d 260 (3d Dist. 1992) (action allowed for death resulting from alcohol related hazing incident). This Court discussed Haben and Quinn in depth, without finding the decisions need to be overturned. Wakulich, 223 Ill.2d 239.

In Quinn, the appellate court found that an 18-year-old plaintiff, who was required to drink to the point of extreme intoxication and neurological damage in order to enter a fraternity, was entitled to sue the fraternity. Despite acknowledging the recognized rule of preemption as to social hosts and dram shops, the court allowed the action to proceed, and stated:
We agree with the case authorities holding that the furnishing of intoxicating beverages to underage persons, such as plaintiff, does not create a legal duty. We feel, however, that we are faced with a situation which consists of more than the mere furnishing of alcohol. The facts, as alleged in plaintiff’s amended complaint, describe a fraternity function where plaintiff was required to drink to intoxication in order to become a member of the fraternity. Even worse, according to the complaint, the alcohol content in plaintiff’s body was “at or near fatal levels.” We cannot close our eyes to the fact that the abuse illustrated in the present case could have resulted in the termination of life and that plaintiff was coerced into being his own executioner. Therefore, we hold that a legal duty was created and the complaint states a cause of action in negligence.

Id. at 237. (emphasis added)

In this case, while Homatas was not required to drink to the point of extreme intoxication, he was encouraged to do so, and then he was required to leave the club and drive away, and, thus, was coerced into being his friend’s executioner, as well as that of April and Addison Elizabeth Simmons. The court distinguished Quinn from social host and tavern cases preempting common law liability by noting the combination of the alleged requirement of extreme drinking along with the violation of an anti-hazing statute designed to protect human life. Here, the alleged facts show On Stage as part of its business plan encouraged extreme drinking beyond drunkenness, and then required violation of drunk driving laws designed to protect the lives of all motorists and their passengers.

In Haben, a hazing case involving death from acute intoxication, the court found that allegation of a “de facto” requirement for drinking was sufficient to satisfy the Quinn standard since “[i]f both the candidate for initiation and the persons performing the initiation believe that drinking is required, it makes little difference whether the requirement is informal or de facto.” Id. at 659. Here, under the allegations of the Simmons complaint, the club required Homatas and Chiariello to leave and brought Homatas’ car around. Interpreted in a manner most favorable to plaintiffs, these allegations show the club created the conditions under which a normal highly intoxicated person (or for that matter even a sober person) would believe he was required to drive away.

Thus, the Simmons complaint alleges an improper requirement in violation of a public safety law at least as strongly as the allegation of a “de facto” requirement of extreme drinking in violation of anti-hazing law in Haben.
Unlike here, defendants in Wimmer v. Koenigseder, 108 Ill.2d 425 (1985), were taverns – a class of defendant to which Illinois courts have consistently applied preemption in cases alleging injury caused by drunken driving. More importantly, the plaintiff in Wimmer made no allegation that either of the two taverns directed the drunken driver responsible for the crash that killed plaintiff’s deceased to leave and drive away. On Stage frets that any tavern that tells its customers to leave at closing time will be subject to liability if this case goes forward. But that’s not the same as a striptease club ejecting a customer who is sick drunk, bringing around his car, helping him get in, and requiring him to drive away.

In Wienke v. Campaign County Grain Association, 113 Ill.App.3d 1005 (4th Dist. 1983), the employer played the role of social host in holding an event for its employees. Thus, the case falls under the preemption rule broadly mandated by this Court as to social hosts. Unlike in this case, no allegation was made in Wienke that the employer ordered or required the drunken driver to leave the function and drive away. To the extent that this Court, in retrospect, might determine that the “substantial assistance or encouragement” section of RESTATEMENT (SECOND) OF TORTS §876(b) would have or should have applied in Wienke or in Wimmer, ITLA respectfully requests the Court provide guidance on the matter. But even without §876(b), On Stage could properly be found liable by a jury under §876(a).

II. On Stage acted in concert with Homatas.

The RESTATEMENT OF TORTS provides as follows as to in-concert liability:
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.”

RESTATEMENT (SECOND) OF TORTS §876, at 315 (1979). (emphasis added)

As to clause (a), the RESTATEMENT comments:

Parties are acting in concert when they act in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. The agreement need not be expressed in words and may be implied and understood to exist from the conduct itself. Whenever two or more persons commit tortious acts in concert, each becomes subject to liability for the acts of the others, as well as for his own acts. The theory of the early common law was that there was a mutual agency of each to act for the others, which made all liable for the tortious acts of any one.

Id. at Comment (a). (emphasis added)

A. On Stage may be held liable under §876(a) of the RESTATEMENT.

Here, the agreement was shown by action. On Stage directed Homatas to leave the club and drive away, and Homatas complied. Its direction and his obedience were both tortious as well as criminal acts since drunk driving is a crime under 625 ILCS 5/11-501, as well as being extremely dangerous. With the action prong of §876(a) fulfilled, no premeditated “common design” is necessary since that phrase follows the disjunctive word “or”. Of course, neither On Stage nor Homatas specifically intended to kill anybody. But intent to kill, maim or otherwise harm is not a requirement. In Scott v. Aldi, 301 Ill.App.3d 459 (1st Dist. 1998), the court allowed plaintiff’s conspiracy claim to proceed against a supermarket whose employee escorted the plaintiff from the store to an unlicensed taxi. The plaintiff, who suffered injury when the taxi crashed, alleged that Aldi, through its agents, entered into a conspiracy to operate an unlawful vehicle-for-hire. The court of appeals reversed the trial court’s dismissal of the conspiracy count, finding that the operation not only was illegal but was tortious conduct, given the public safety purpose of the statute requiring cabs to be licensed. Id. at 529. In Scott, the plaintiff, of course, made no allegation that defendants intended that she be injured.

Such intent is rare. Even in the case of Woods v. Cole, 181 Ill.2d 512 (Ill. 1998), the defendant was only accused of negligently loading a firearm and encouraging another to pull the trigger for the purpose of scaring plaintiff’s deceased, not for the purpose of killing him. If intent to maim or kill were a requirement, few, if any, of the §876(a) cases allowed to go to trial would have survived a motion to dismiss.

Here, similar to Scott, plaintiffs allege that On Stage engaged in a tortious course of conduct by requiring Homatas to leave the club and drive away from the club drunk. As in Scott, the law that On Stage and Homatas violated as to Homatas’ drunk driving was a public safety statute. As in Scott, their alleged, in-concert violation of the statute is actionable. Requiring someone to commit a crime is itself actionable. See Lambert v. Lake Forest, 186 Ill. App. 3d 937, 944 (2d Dist. 1989).

B. On Stage may be held liable under §876(b) of the RESTATEMENT.

Comment b, RESTATEMENT (SECOND) TORTS §876(b). Under plaintiffs’ allegations, the club knew that Homatas was extremely intoxicated, and should not be driving. The drive itself was a tortious act. The drive itself foreseeably led to the tragedy that followed. Whether the club ordered Homatas to drive away or simply ordered him out, brought his car around, opened the door and allowed him to leave, the club substantially encouraged Homatas’ tortious conduct, and, thus, can be held liable under part (b) of the RESTATEMENT (SECOND) OF TORTS §876. Because the club was neither giving away nor selling liquor, the preemption cases on which On Stage relies simply do not apply.

Nor does it matter that the club itself was not present at the scene when the predictable crash occurred. In Clausen v. Carroll, 291 Ill.App.3d 530 (2d Dist. 1997), the court determined that the substantial encouragement given by the defendant, a participant in drag racing, made the defendant Ryan Chapman subject to liability under §876. The drag race itself was the tortious conduct. It did not matter that Chapman was not involved in the subsequent crash.

The court explained:

We believe that a drag race is a joint venture where all participants have encouraged one another to engage in reckless conduct. …

Id. at 539-540.

The court in Clausen noted that its decision was a logical extension of Sanke v. Bechina, 216 Ill.App.3d 962 (2nd Dist. 1991), where a passenger in the car through comments and gestures had substantially encouraged the driver’s reckless driving. In Sanke, the court stated that
a person other than the driver is not held liable for damages caused by negligent acts of the driver unless that person is the owner of the vehicle or has the right to control that vehicle … However, plaintiffs in this case are not asserting Bechina had a duty to control Schwartz in order to prevent him from driving in a reckless manner. Instead they assert Bechina himself is a contributing tort-feasor.

Id. at 963-964. The court agreed, finding that plaintiffs had stated a viable claim with respect to the passenger’s own alleged wrongful acts, and that “[t]he determination of whether Bechina’s conduct constituted ‘substantial encouragement’ is a question of fact for the jury.” Id. at 972. Here, too, plaintiffs state a viable claim in alleging the club’s wrongful and substantial encouragement of drunken driving, and the question of whether the club’s conduct constituted such substantial encouragement or otherwise constituted participation in the tortious crime of drunk driving is one for the jury.

The situation here is readily distinguishable from that of Umble v. McKie and Sons, 294 Ill.App.3d 449 (2nd Dist. 1998). In that case, the repair shop simply fixed the driver’s car and returned the keys to him as it was required to do or face the possibility of a conversion action. Unlike here, the repair shop did not substantially encourage the driver to drink any alcohol, much less to drink to the point of extreme intoxication and sickness. Nor did the repair shop require the driver to leave and to drive away. As the court noted, “The complaint contains no allegation that any of defendant’s employees actively encouraged Butzen to get back in his car and drive. We do not equate failing to prevent certain conduct from actively encouraging that conduct.” Id. at 451-452. In contrast, here, under both the Chiariello and Simmon complaints, On Stage actively and substantially encouraged Homatas to drink to extreme excess and to drive away drunk. Under the allegations, On Stage did not have to undertake any “problematic” determination to figure out whether Homatas was drunk. After all, On Stage ejected him because he was so sick from intoxication that he vomited in its bathroom. On Stage acted in an attempt to rid itself of the problem posed by a drunken customer – a problem it played a significant and premeditated role in creating. The alleged participatory acts of On Stage were inherently wanton and wrongful; not so with the alleged acts of the repair shop in the Umble case. That makes all the difference.

III. On Stage’s actions proximately caused the deaths at issue.

In Claussen, 291 Ill.App.3d at 540, the court found that the crash that injured the plaintiff was “was a natural or foreseeable result of the alleged race” and, thus, that Chapman’s involvement in the prior drag race was a proximate cause of plaintiff’s injuries, even though Chapman was not driving a vehicle involved in the crash. His substantial encouragement of the tortious activity was enough to find legal causation.

The same is true here. As the appellate court noted, On Stage doesn’t challenge the existence of the cause-in-fact prong of proximate cause that ‘but for’ its actions the crash would not have occurred. Nothing in the pleadings indicates that Homatas wished to leave the club or would have been able to get into his car without assistance at the time that On Stage ejected him and his friend Chiariello, and helped Homatas get behind the wheel. As to legal cause, as a matter of common sense, the appellate court was right in concluding that “not only was the action foreseeable, but in this case it was nearly predictable.” Simmons, supra, 368 Ill.App.3d at 1009. It was the club’s substantial assistance in encouraging Homatas to become drunk to the point of sickness and then in requiring him to leave and drive away – and not the provision of alcohol – that served as a proximate cause of the crash. Id.

In fact, On Stage itself didn’t even provide the hard liquor that Homatas and his friend drank, so the preemption-based cases cited by defendant that ascribe proximate cause solely to the person who imbibes and not to the bar that sells or the host who gives away alcohol cannot determine the issue. While it might normally seem, aside from the preemption rule, that the provider of alcohol would, if anything, be arguably more responsible for proximately causing a drunken driving crash, On Stage’s business plan was predicated on an ironic paradox: because it could not serve liquor, it could encourage excessive drinking with abandon. But its plan turns on a wooden adherence to preemption, and disregard of common law, contrary to the teachings of Wakulich. Under the allegations in this case, the club encouraged and required Homatas to commit the tortious crime of drunk driving, and, thus, the club must share in the blame for proximately causing the ensuing, predictable crash.

Defendant’s argument that it can’t be held liable because Homata’s criminal act of driving drunk broke the chain of causation makes no sense given that the club directed that criminal act. After all, even a defendant’s mere negligence enabling the commission of a criminal act by a third party may suffice to support a finding of proximate cause and liability. Thus a taxi company whose driver left his cab running with the key in its ignition contrary to statute could be sued despite defendant’s objection that a thief’s act of stealing the cab before crashing it broke the chain of causation. The question of proximate cause was for the jury to decide. Ney v. Yellow Cab, 2 Ill.2d 74, 84 (1954). In this case, the issue of causation is simpler since On Stage required Homatas to violate the law and drive while he was extremely intoxicated. The cabbie in Ney enabled the thief, while On Stage both enabled and ordered Homatas’ violation of the law.

IV. Simmons’ lack of a “special relationship” with On Stage makes no difference.

Only section (c) of §876 requires breach of duty to a third person. By implication, no such breach of a direct duty owed by the in-concert tortfeasor need be established to adequately allege the tortfeasor’s liability under (a) and (b) which, as discussed above, apply here.
Brewster v. Rush-Presbyterian-St. Luke’s Med. Ctr., 361 Ill.App.3d 32 (1st Dist. 2005), does not meet the criteria of §876(a) because the hospital was not acting tortiously in concert with anyone in simply requiring its resident to work a 36-hour shift. On Stage’s claim that the case would have been no different had the hospital known the resident was driving and told her to go home and get some rest is mere speculation since no such facts were alleged. Nor does Brewster meet the criteria of §876(b) because no evidence indicated that the resident’s staying up to work long hours constituted a breach of any duty. In fact, the case did not address in-concert liability at all. Brewster did find that there was no private right of action under the duty hour requirements for residents under the Hospital Licensing Act because the act was enacted to protect hospital patients, not the public in general. Here, in contrast, the law against drunk driving is designed to protect the traveling public – a class that included both Chiariello and the Simmonses.
Defendant also relies upon Iseberg v. Gross,227 Ill.2d 78 (2007), for its no-special-duty argument. In that case, two business partners of the claimant learned of threats by a former business partner to harm him. After he was shot and wounded, Mitchell Iseberg sued the two partners for not warning him or informing the police of the threats. The Court concluded that the defendants had no duty to do so without a special relationship with Iseberg that would have required such a warning. In so holding, the Court distinguished Iseberg from cases where, as here, the defendant was alleged to have engaged in some “negligent affirmative conduct”. Id. at 97. In Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414 (2004), for instance, the Court allowed a wrongful death action by the estate of an individual who was murdered by the beneficiary of a life insurance policy who took out the policy, unknown to the insured, in the insured’s name. Under the alleged facts, the insurer’s agent was affirmatively negligent in falsely representing on the policy application that he had witnessed the signature of the proposed insured.
Under the alleged facts of this case, On Stage was affirmatively negligent in first encouraging Homatas to drink liquor to the point of extreme intoxication, and then in encouraging and requiring him to drive away drunk. In these circumstances, as in Bajwa, On Stage itself was affirmatively negligent, so no special relationship need be established between it and the Simmonses for them to have a viable claim against the striptease club.

On Stage separately relies on social host cases in arguing that a special relationship must be established. But those cases are readily distinguishable since, as discussed, preemption applied, making causation a moot issue. The same distinction applies to the tavern and social host cases defendant cites in claiming that Illinois courts have held that imputing a duty under the circumstances presented here is improper. (Br. at 30, et seq.) Under the extraordinary facts alleged by plaintiffs, the finding of duty is appropriate. Not only were the resulting deaths entirely foreseeable, indeed predictable, but considerations of public policy favor imposing a duty. On Stage allegedly followed a clever business plan where the booze flowed freely at the encouragement of its servers, where the dance girls got big tips, and where the club shared in the substantial profits. Under its plan, On Stage created the wild, wild Midwest in West Chicago. It encouraged its customers to live it up – live it up at the expense of the deaths John Chiariello, April and Addison Elizabeth Simmons, and untold others who were killed or maimed as a result. Considerations of public policy and fairness, as well as common law principles set forth in the RESTATEMENT (SECOND) of Torts §876, cry out for imposing the rule of law to rein in this defendant.

CONCLUSION

Illinois Trial Lawyers Association

By: William Lazarus

Sexual battery claim against physician before high court.

Introduction

The appellate court erred in disregarding the context of Kristen Kaufmann’s claim. The court focused on the moment of the January 2006 sexual battery by Roger A. Schroeder, M.D., rather than his treatment of her since 2004. It ignored the totality of Kaufmann’s care, including her stay at Jersey Hospital as well as Dr. Schroeder’s treatment. “We are all born mad. Some remain so,” the playwright Samuel Beckett wrote in Waiting for Godot. A newborn cannot make sense out of the world. It takes a realization of associations, and understanding of context, for the babe to become a rationale human being. Similarly, Kaufmann’s actions cannot be understood without considering her involvement as a patient obtaining medical care. In being blind to the totality of the situation under which Plaintiff was sedated while being treated by Dr. Schroeder at the hospital, the court’s decision conflicts with this Court’s decisions in Brucker v. Mercola, 227 Ill. 2d 502 (2007) and Orlak v. Loyola University Health System, 228 Ill. 2d 1 (2007) as well as decisions by lower Illinois appellate courts.

ARGUMENT

I. It is appropriate to consider 735 ILCS 5/13-212 in interpreting the Tort Immunity Act amendment.

At issue is the meaning of the June 4, 2003 amendment to the Tort Immunity Act extending the statute of limitations to two years in actions 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…” 745 ILCS 10/8-101(b). Given that no cases have interpreted this statute, the parties and the court below appropriately looked to Brucker, Orlak, and other cases interpreting parallel language in 735 ILCS 5/13-212, which sets forth a statute of limitations and statute of repose for tort, breach of contract or other actions against any physician, dentist, registered nurse or licensed hospital.

II. Illinois courts have repeatedly interpreted section 3-212 to apply to claims not involving medical malpractice.

In interpreting section 3-212, this Court and other Illinois courts have interpreted “the arising out of patient care” language” to apply to claims that did not simply allege medical malpractice. In Brucker, a receptionist assistant to Dr. Joseph Mercola mistakenly put selenium into a bottle sold as L-Glutamine that was sold to Dr. Mercola’s patient, Anna Marie Bruckner. The accompanying directions called for mixing a teaspoon of powder with a glass of water, which was an amount more than 20,000 times the safe dosage of selenium. Anna Brucker was pregnant at the time. She and her husband sued Dr. Mercola, alleging that their son was poisoned in utero when Anna ingested the selenium powder.

This Court rejected arguments that the statute of repose limit imposed by section 13-212 was not applicable, whether Dr. Mercola’s acts were deemed to be medical malpractice by a physician or ordinary negligence by a retail vendor of supplements. It noted that the legislature passed 735 ILCS 5/2-622(a) (West 2006) and thus knows to address medical malpractice when it wishes to do so. The court then stated,

Because the legislature instead made section 13-212 applicable when the plaintiff seeks damages for injury or death, whether in tort, breach or contract, or otherwise, arising out of patient care, we must presume that the legislature did not intend “patient care” to be synonymous with “medical malpractice.” Perhaps the easiest way to state the point is that all medical malpractice claims involve injuries arising out of patient care, but not all injures arising out of patient care were by reason of medical malpractice.

Brucker, 227 Ill.2d at 532. Whether the claim was for ordinary negligence or medical malpractice, the court found, “[b]oth actions are covered by section 13-212(b) if the injury arose out of patient care.” Id. at 533. Thus, the negligent packaging of the wrong chemical in a bottle meant for another medication fell under section 13-212. It made no difference that the negligent act itself could hardly be deemed “patient care”.

The Supreme Court further stated that “[s]ection 3-212(b) is broader than section 2-622(a) [relating to medical malpractice claims], and it is clear that there are some situations in which a plaintiff would have to file within the time limits prescribed by section 13-212(b), but would not have to attach an attorney’s affidavit or a health professional’s report.” Id. at 517.

In Orlak, the Court reached the same conclusions, finding that the statute of repose provision of section13-212(a) applied to bar an action alleging a hospital’s failure over the course of 11 years to notify the plaintiff that a transfusion should be tested for viral hepatitis. The plaintiff sought to characterize the matter as an administrative failure that was independent of the care she received years earlier. This Court rejected that argument, finding,

It is clear that the legislature intended the statute of repose to operate in a very broad manner and it has been interpreted in that manner by courts addressing the issue. The question is not whether the plaintiff has alleged medical negligence or ordinary negligence. Rather, the sole issue is whether the plaintiff’s claim arose from patient care. The word “arise” is defined in Black’s Law Dictionary as “[t]o originate; to stem (from),” or “to result (from).” Black’s Law Dictionary 115 (8th ed. 2004). “Arise” is also defined elsewhere as “to originate from a source.” Merriam-Webster’s Collegiate Dictionary 66 (11th ed. 2006).

Orlak, supra, 228 Ill.2d at 14-15. Given this broad meaning of the word “arise”, the Court found, as it found in Brucker, that the statute simply required

“a causal connection between the patient’s medical care and the injury. While the phrase does not need to be construed so broadly as to encompass ‘but for’ causation, it clearly covers any injuries that have their origin in, or are incidental to, a patient’s medical care and treatment.” Brucker, 227 Ill. 2d at 523-24, 2007 Ill. LEXIS 1838, at *31.

Orlak, 228 Ill. 2d at 15.

III. Kaufmann’s injuries arose out of her patient care.

Here, Plaintiff’s injuries had their origin in and were incidental to her medical care and treatment at Jersey Community Hospital for a urinary tract infection. Had she not been in treatment, Dr. Schroeder would not have had the opportunity to commit his sexually deviant act. His act arose out of her treatment; it was not a mere happenstance. Dr. Schroeder did not, by chance, fall out of a cabinet, hitting Kaufmann on the head and knocking her out. As her doctor, he sedated her. He was able to sedate Kaufmann and then perform his deviant sexual act because of his presence as her physician at the hospital.

Orlak discusses several cases in which lower appellate courts gave the same interpretation to the parallel “arising out of patient care” language of section 13-212(a) years before the Illinois Legislature revised the Tort Immunity Statute by adding section 8-101(b) with language parallel to section 13-212(a). Had the legislature wished to narrow the scope of section 8-101(b) to only address medical malpractice situations rather than a gamut of circumstances arising out of patient care, it could have, and would have, dropped the broad “arising out of” language. The legislature also could have restricted the statute’s application to medical malpractice tort claims, rather than claims based upon “tort, or breach of contract, or otherwise”. But it chose not to do so.

IV. Legislative intent is clear as to the amendment of the Tort Immunity Act, given prior court decisions on section 13-212(a).

As this Court has explained, the “cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. …That intent is best gleaned from the words of the statute itself, and where the statutory language is clear and unambiguous, it must be given effect. …A court should interpret a statute, where possible, according to the plain and ordinary meaning of the language used.” Orlak, supra, at 228 Ill.2d at 8. (Citations omitted.)

The plain meaning of section 8-101(b) is the same meaning of section 13-212(a), given the parallel construction. This Court is well familiar with the broad interpretation of the “arising out of patient care” language made by appellate courts prior to 2003; it discussed the precedents in depth in both Orlak and Bruckner.

Time and again, plaintiffs seeking to avoid the statute of limitations or the statute of repose contained in section 13-212 have argued, as Jersey Community Hospital argues here, that their case did not involve patient care, and, therefore, should not fall under the statute. Time and again, Illinois courts have rejected that assertion, finding that the phase “arising out of” has significance.

In 1989 in Miller v. Tobin, 186 Ill App.3d 175 (2d Dist. 1989), plaintiff alleged that the defendant, a psychiatrist, revealed confidential information to the patient’s wife, who also was seeing the defendant for marriage counseling. Plaintiff alleged breach of contract and violation of the Mental Health Developmental Disabilities and Confidentiality Act. Though the trial court concluded that plaintiff’s complaint was not a malpractice action, it granted defendant’s motion to dismiss, ruling that the limitations set forth in section 13-212 did apply because his injury arose out of treatment by the defendant. The appellate court affirmed, finding that “the pertinent issue is not whether plaintiff’s suit alleges malpractice, but whether plaintiff’s injuries arose out of patient care.” Id. at 174. That an illegal breach of confidence could hardly be deemed to be “patient care” made no difference since the plaintiff and his wife were under treatment and therefore the alleged breach arose out of patient care.

Here, defendant alleges that Dr. Schroeder’s deviant acts were not patient care. No matter. They arose within the context of treatment. They arose out of patient care and therefore are encompassed by 8-101(b).

Similarly, in Walsh v. Barry-Harlem Corp., 272 Ill.App.3d 418 (1^st Dist. 1995), the appellate court upheld the dismissal of a complaint that alleged that doctors fraudulently performed unnecessary eye surgery, resulting in economic loss. The court noted, citing Hayes v. Mercy Hospital & Medical Center, 136 Ill.2d 450, 459 (Ill. 1990) that the words in section 13-212 “or otherwise” were meant to be “all inclusive. Walsh, supra, 272 Ill.App.3d at 422. Further, the court cited the broad meaning of the plain language covering “injury … arising out of patient care” and found it would apply even though no physical injury was alleged in the complaint. Thus, plaintiff’s economic fraud complaint came under section 13-212, even though purposefully performing unnecessary surgery bears more similarity to an intentional battery than to patient care. But the surgery arose out of the medical care rendered to plaintiff, and that made the statute apply however the care was characterized. Similarly, here Dr. Schroeder’s unnecessary administration of sedation and ensuing deviant sexual battery on Plaintiff arose out of her medical care, no matter how the sedation and battery themselves are characterized.

The Seventh Circuit also has given broad reach to section 13-212. In Stiffler v. Lutheran Hospital, 965 F.2d 137 (7th Cir. 1992), plaintiff suffered injury when a prosthetic device implanted in her chest broke off and became entangled in her intestines. She filed a products liability action, but the court found that section 13-212 barred the claim since it arose out of patient care; the court noted that medical materials are so “inextricably linked” with treatment that their use “almost per se arises ‘out of patient care.’” Id. at 140-141. Here, Dr. Schroeder’s sedation of Kaufmann was inextricably linked both to his provision of medical care and his subsequent battery.

Defendant argues that Dr. Schroeder’s use of drugs and ensuing deviant sexual act could have happened anywhere. But it cannot and does not deny that it happened at the hospital where Kaufmann was undergoing care for a urinary tract infection. One can always speculate that anything can happen anywhere. But such speculation does not erase the fact that the wrongful acts alleged here arose out of the care that Kaufmann was receiving at the hospital. Her exposure to Dr. Schroeder was not a happenstance occurrence, but part of her care in the hospital and her continuing care by the physician. Dr. Schroeder had access to her because of the hospital’s trust and her trust, a trust that was reinforced by the hospital environment.

V. Defendant’s out-of-state cases addressed medical malpractice and are thus irrelevant as well as lacking precedential authority in Illinois.

Defendant, as did the appellate court, cited two out-of-state cases – Doe v. Cherwitz, 894 F. Supp 344 (S.D. Iowa 1995) and Burke v. Snyder, 899 So.2d 336 (Fla App. 2005), in an effort to support the claim that the alleged wrongful acts by Dr. Schroeder did not arise from patient care. In addition to not being precedent in Illinois courts, the cases themselves fail to bolster defendant’s argument. In Burke, the court concluded that “the claim of sexual misconduct in this case is not a claim arising out of negligent medical treatment.” Id. at 341. But, as discussed, in Illinois, neither section 13-212(b) nor section 9-101(b) are restricted to claims arising out of negligent treatment, i.e. medical malpractice. Rather, they may sound in “tort, breach of contract, or otherwise” and need only arise out of patient care, not negligent patient care. Cherwitz is similarly distinguishable since the case addressed Iowa Code § 614.1(9) addressing “Malpractice. … arising out of patient care.” Cherwitz, 894 F. Supp. at 345. As this Court has found, allegations of malpractice are not requisite to a section 13-212(b) action. Neither should they be requisite in an action based on section 9-101(b), given its parallel wording.

This Court and Illinois appellate courts have consistently found section 13-212(b) to be unambiguous. The same lack of ambiguity exists in the parallel plain and ordinary wording of section 8-101(b). It is thus not appropriate to speculate based on a legislator’s brief and vague oral comment cited by Defendant as to the meaning of the section intended by the entire legislature. Rather, the language of the statute must control.

Dr. Schroeder’s deviant battery upon Kaufmann occurred at Defendant’s hospital and arose out of her treatment at the facility. No matter how that battery and accompanying sedation are characterized – as negligence, an intentional tort, breach of contract, or otherwise – the wrongful acts fall under section 9-101(b) of the Tort Immunity Act. This Court and Illinois appellate courts have set forth the standards for applying the parallel language embodied in section 13-212. Those standards are based upon principles of statutory interpretation, not on an inequitable and illogical notion that the statute of limitation and repose should only apply to deny plaintiffs the right to sue, and never to allow it.

CONCLUSION

WHEREFORE, the Illinois Trial Lawyers Association, as amicus curiae, requests that this Court reverse the Appellate Court’s decision and remand the case for further proceedings.

Respectfully submitted,

Illinois Trial Lawyers Association

By: __________________________

William Lazarus

William Lazarus, ARDC #6187706

18400 Maple Creek Dr., Suite 500

Tinley Park, IL 60477

(708) 444-0220

(708) 249-3034 (fax)

Approaching the Appeal

©By William Lazarus

Trial lawyers are masters at pounding the facts and persuading the jury. Oral advocacy dominates the trial. A skillful advocate builds the evidence, raising the drama as the trial develops. The resulting emotional impact, as well as the evidence itself, drives the verdict.

Appeals are a different creature. The brief is the thing. Oral argument is commonly not part of the picture. Even when such arguments are allowed, the brief’s dispassionate arguments focused on application of legal principles to the facts will, in all likelihood, decide the case.

“Cases are not won at oral argument; they are only lost,” writes Senior United States Circuit Judge Ruggero J. Aldisert in his book, Winning on Appeal. Having read the briefs, appellate judges will commonly seek to flesh out particular issues in which they take interest. Attorneys are frequently left with little time to address the issues as they prefer. Trial lawyers long persuaded of the merits of their case and determined to emphasize particular points rather than discuss issues of precedent and factual matters troubling the judges may transform a winning case into a loser. Dialogue and a willingness to explore subtle points of judicial inquiry are the ticket to winning the judges over. A closing argument to the jury will not work with the appeals court.

Preparing the oral argument, however, will bring focus, or, hopefully, a renewed focus on critical points that may not have received adequate emphasis in the brief. Since oral arguments are short, attorneys are forced to distill the key points of their arguments. But the focus and distillation may be lost as questions are posed by the judges sitting on the bench. So, do not depend upon oral argument to bring clarity and organization to your argument. Your brief must do that. Before writing, consider the main point to emphasize, and, as a rule, address that point first, unless you have a particular reason to move the argument down. Before giving relatively low play to a key argument, discuss the reasons you wish to do so with a colleague to help ensure you are not making a mistake.

It might be best to drop peripheral arguments altogether, says Cook County Judge Martin Moltz, who spent many years an appellate attorney before taking the bench himself. Moltz recalls a burglary case he handled when he was an appellate prosecutor. The defense had a “dead bang winner” on an evidentiary point. But “counsel didn’t know any better,” Moltz says. “He buried it as issue four in an eight-issue brief” and lost the appeal. “That was a classic example where somebody was trying to throw in everything. …If you’ve got one good winning point, go with it,” Judge Moltz says. “There’s nothing wrong with a one issue brief.” Or, perhaps three issues make sense, but not six, says Judge Aldisert:

“When faced with a brief that raises no more than three points, I breathe a sigh of satisfaction and conclude that the brief writer really may have something to say. I probably react in the same manner, or perhaps to a slightly lesser degree, when four or five points are presented. Beyond this point, I must confess, a small beast bearing the name of intolerance begins to nibble at my habitually disinterested judgment.”[1]

Jurisdictional complexities

Before writing a focused brief, and before an oral argument is even a possibility, a long road must be travelled. The first step on that road is to determine whether jurisdiction exists for an appeal. While a final judgment, or the final judgment upon rehearing, will start the 30-day clock ticking on an appeal in Illinois courts, the question of whether the judgment is, in fact, final or whether jurisdiction otherwise exists takes analysis. The rules are many, and the rules themselves are subject to change. They need to be reviewed when a brief is undertaken.

Remember that finality of judgment as to particular issues or to a party in a multi-party case is not enough to create jurisdiction on appeal, unless the trial court adds the language that there is no just reason for delay.[2] An order not citing the rule and only noting it was “final and appealable” did not create jurisdiction for an appeal.^{^[3]} Without the “no just reason for delay” language, it is wise to count all the issues — including counterclaims — and the parties to ensure that each has been decided by the trial court.

Even without a final judgment, cases may still be appealed under certain other circumstances. Supreme Court Rule 306 details five types of orders which can be appealed on petition, including, for instance, an order in the administration of a receivership, an order granting a new trial, and an order granting or denying transfer on grounds of forum non conveniens.

Some interlocutory appeals are allowed as a matter of right, including orders granting, modifying or dissolving an injunction and orders appointing a receiver.[4] These appeals must be noticed within 30 days, except in cases of ex parte orders, which require first going to the trial court for vacation of the order, and temporary restraining orders, which must be appealed, along with any supporting petition, within two days of the entry of the order. The appellant’s docketing statement in interlocutory appeals as of right under SCR 307(a) are to be filed within seven days of filing the notice of appeal; As to other appeals filed as a matter of right, the appellant has 14 days to file the docketing statement following the notice, along with any unpaid filing fee.[5]

Certain interlocutory appeals can be allowed by permission, with a trial court finding that its order involves “a question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from the order may materially advance the ultimate termination of the litigation…”[6] In such cases, the appellate court will decide whether it will permit the appeal, after reviewing the application and the answer opposing it. The docketing statement is due upon submission of the application.

Also, the forum itself must be kept in mind. While parties have 30 days to file post-trial motions that toll the notice of appeal deadline in Illinois state courts, wait that long to seek a new trial in federal court and you’ll be 20 days too late.[7]

A seemingly simple, sometimes treacherous rule

Jurisdiction is conferred upon the appellate court only through the timely filing of a notice of appeal. Illinois Supreme Court Rule 301 appears simple, but it can be treacherous. The motion must be filed “within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, …within 30 days after the entry of the order disposing of the last pending post-judgment motion.” SRC 303(a) (emphasis added) If the portion of a post trial motion “directed against the judgment” is dismissed, the remaining portion will not continue to toll the due date for the notice of appeal.^{^[8]}

A judge has no authority to extend the 30-day jurisdictional time limit for filing a notice of appeal, and attorneys are not excused from following filing requirements merely by a judge’s recommendation of a procedure beyond his authority.^{^[9]} An agreement between attorneys to allow a second extension of time to seek rehearing was deemed inadequate to secure jurisdiction where the resulting faxed extension request did not comply with the rules.^{^[10]}

Post jury trial motions limit the appeal

After a trial, the first step in an appeal commonly comes in post-trial motions, before the appeal itself. In the case of a jury trial, Illinois Supreme Court Rule 366(b)(2)(iii) provides, “A party may not urge as error on review of the ruling on the party’s post-trial motion any point, ground, or relief not specified in the motion.” Thus, the post-trial motion will frame, and limit, a subsequent appeal. (The rule is different with a non-jury trial. SRC 366(b)(3)(ii) provides, “Neither the filing of nor the failure to file a post-judgment motion limits the scope of review.”)

The point is to not tarry. If you are going to appeal the jury’s verdict, do the planning immediately in its wake. If you wait until after your post trial motion to give full consideration to all the points you wish to appeal, you likely will find yourself unnecessarily limited in the points you can raise. Also remember that you will be limited by the record. The jury instructions and the evidentiary objections raised prior to and during trial will frame the appeal. Consider discussing these matters with someone who concentrates on appeals. Another perspective, with an eye to the likely appeal in a big case, may make all the difference down the line.

Approaching the appeal

Where summary judgment has been granted, the record likely will be straightforward. The briefs and evidence presented to the trial court judge and the statements of uncontested facts, and the answers disputing those statements, will frame the issues. The situation becomes far more complex after trial.

A review of all the orders of the court, in conjunction with pre-trial and post-trial motions, should be undertaken early. This, including the jury instructions conference, and court rulings on any contested instructions, will provide an initial grounding as to likely issues for an appeal.

The record should be reviewed in its entirety, with detailed notes taken in an electronically searchable document. A searchable, digital transcript of the proceedings can be of immense help in scouting issues before and after review of the record.

First spot the issues, then narrow the scope

An intense examination of the record will enable the appellate attorney to develop a firm grasp of the case and the issues that should be considered. After the entire record is reviewed, it is time to brainstorm. But identification of possible issues for the appeal is just that. An appeal devoted to addressing every conceivable issue in a case is an appeal in trouble.

After the potential issues have been identified comes the critical work of narrowing the issues. Weak arguments are likely to bore the Court, and will tend to pull down the strong arguments. The everything-but-the-kitchen sink approach likely will lead skeptical judges to conclude that none of the arguments are worthy.

A second set of eyes can be immensely helpful in the work of framing the issues. Trial counsel played the gladiator in presenting the issues with passion and persuasion to jurors. But appellate judges don’t think like most jurors. The approach must differ, and an outside opinion can lend perspective necessary to making the approach on appeal work.

Dealing simply with complexity

The brief itself should be written in a straightforward fashion, communicating complex matters in an easy to understand format. Judge Aldisert in Winning on Appeal, discusses the “avalanche of appeals” and notes, with realistic humor, the “brief-reading environment” where distractions at the office, and at home, often vie for the attention of judges who commonly face reading well over 1,000 briefs each year.

The point is that the briefs must grab the judges’ attention and hold it. Good writing is key to achieving that. To keep the judge’s attention, the brief must be concise and clear. It also must be logical and accurate. Needless repetition, obscure constructions, circuitous and rudderless arguments, an overload of issues, irrelevant facts, convoluted syntax, lack of focus and disorganization serve to spur the judge to put the brief down for another day — a day which likely will never come. Worse still, misrepresented facts and case law will undermine counsel’s credibility, causing the judge to cease paying attention, or pay attention with a jaundiced view of the arguments. While even in these circumstances the attorney’s position may still prevail — even a great brief will not ensure that a bad case is won and vice-versa — the brief that lacks credibility and that makes claims contrary to the facts and the law will only serve to undermine the client’s case.

Set aside time

Preparation of an appellate brief takes time to review the full record, time to think about that record, time to organize, time to pare the argument to the essentials, and time to put present the argument cogently and to rewrite. Preparation takes painstaking research, and a willingness to address subtle legal distinctions. It takes time to focus, without continuous distractions from pending cases. While some trial lawyers are up to the task, many would far prefer to tackle the next trial than wade through the shoals of the appeal.

[1] Winning on appeal, Revised First Edition, p. 119.

[2] SCR 304(a).

^{^[3]}Coryell v. LaGrange, 245 Ill.App.3rd 1, 7 (1st Dist. 1993)

[4] SCR 307.

[5] SCR 312.

[6] SCR 308(a).

[7] Fed.R.Civ.P. 59(b)

^{^[8]} Berg v. Allied Sec., 193 Ill. 2d 186, 189 (Ill. 2000)

^{^[9]} Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 150 (Ill. 1994)

^{^[10]} Lowenthal v. McDonald, 367 Ill. App. 3d 919, 923 (Ill. App. Ct. 2d Dist. 2006)

Franciose v. Jones

First crash

Late in the afternoon on December 13, 2003, Ray Ramirez, his fiancee Jamie Morris, and Aaron Jones, were returning in Ray’s pickup from a trip to Bloomington, Indiana. (J.Appp. 86, 88) The weather was freezing cold, in the single digits. (J.App. 87, 171) Snow started to fall about an hour into the trip in line with forecasts for bad weather and reports heard on the radio. (J.App. 88-89) As the three traveled north on I-65, they saw a van that had slipped off the left side of the highway, and then a car off the right side of the road. (J.App. 89) Shortly before 5 p.m., the three were approaching a bridge, up a hill just south of Demotte, while snow swirled in the headlights. (J.App. 90) Ramirez knew that bridges became icy in such weather conditions, that the cruise-control would speed up the engine as they went up the hill on the bridge, and that this made it probable they would lose traction. (J.App. 211-214) but Ramirez kept the cruise-control engaged and headed up the bridge. (J.App. 90, 211) the truck started to slide and Ramirez tried to spin the wheel; he lost control, hit the concrete barrier on the right side of the bridge, spun around completely, hit the barrier on the other side of the ridge and ended up with the pickup perpendicular to the highway, completely blocking the fast lane on the bridge, which had only two lanes in either direction. (J.App. 90-91; R.App. 77) After the airbags deployed, the inside of the truck filled with smoke. (J.App. 91) Thinking it was on fire, all three got out of the truck, emergency lights flashing, and headed back south, walking down the bridge to a grassy area in the median. (Id. J.App. 91) They watched semi-trucks skid by the disabled pickup, missing it by inches or less. (Id.) Jamie Morris expected a driver would slam into the pickup, and someone would be killed. (R.App. 47)

***

A reasonable jury could find that danger remained present.

Ramirez’s argument also assumes that “Jones was not reacting to an existing emergency.” (Br. at 7) This argument is either patently false or depends upon mere word play, restricting emergencies to situations only involving physical injury. Black’s Law Dictionary defines “emergency” as:

A sudden unexpected happening; an unforeseen occurrence or condition; perplexing contingency or complication of circumstances; a sudden or unexpected occasion for action; exigency; pressing necessity. Emergency is an unforeseen combination of circumstances that calls for immediate action without time for full deliberation.

BLACK’S LAW DICTIONARY at 522-523 (6th ed. 1990) (citation omitted)

Nothing in this definition requires blood on the ground or broken bones for an emergency to exist. Here, the danger was manifest. It was dark. Northbound I-65 at the bridge was icy. Ramirez’s pickup was jutting out into the Interstate, blocking the fast lane. The testimony of Jamie Morris, Ramirez’s fiancee, dramatically reflected the danger: as she watched semi-trucks skid past within inches of the pickup, she thought somebody was going to get killed.

With the passage of a few minutes — perhaps fifteen, perhaps less — the danger partly and temporarily subsided. Aaron and Morris testified to two tractor-trailers slowly going up the rise to the bridge, and traffic backing up behind them. Testimony differed as to whether one or both lanes were blocked. Either way, the semis were moving and would pass the crash site sooner or later. The danger had not passed, but there was a moment when moving the pickup off the Interstate seemed reasonable to Aaron. It was left to the jury to decide whether Aaron’s actions were reasonable, and, thus, foreseeable, in the face of existing danger.

A reasonable jury could find that Aaron acted to save lives.

Ramirez’s argument also falsely assumes that Aaron only acted to save Ramirez’s truck, rather than human lives. But the danger was not restricted to mere property damage. Even if, as Ramirez argues, the rescue doctrine only applies to situations involving the saving of life and limb, it is applicable in this case where the danger to oncoming drivers, as well as to the Good Samaritan Danielle, was very much present. In fact, Ramirez himself states that Aaron and other motorists “decided to move the truck so that it would not block traffic or continue to create a hazard to others.” (Br. at 3) This admission cannot be squared with his assertion that Aaron “was not reacting to an existing or imminent danger to human life.” (Br. at 7)

Brief in scope of employment appeal

IN THE THIRD DISTRICT APPELLATE COURT

OF THE STATE OF ILLINOIS

Appellate Case No. 3-09-0410

_______________________________________________________

PAMELA J. WATSON and )

DARRYL WATSON )

) Appeal from the Circuit

Plaintiffs-Appellants ) Court of the Twelfth

) Judicial District Circuit

v. ) Case No. 06L686

) The Honorable Judge

DANIEL T. MESICH and ) Michael J. Powers,

IMPERIAL CONSTRUCTION ) presiding

ASSOCIATES, INC. )

)

Defendants-Appellee )

____________________________________________________

APPELLANTS’ BRIEF

____________________________________________________

William Lazarus, Attorney No. 6187706

Law Office of William Lazarus

18300 Dixie Highway

Homewood, Illinois 60430

Tel: (708) 215-0348

Fax: (708) 249-3034

Gregory T. Mitchell, Attorney No. 6195711

Law Office of Gregory T. Mitchell, P.C

18141 Dixie Highway

Homewood, Illinois 60430

Tel: (708) 799-9325

Fax: (708) 799-9326

Attorneys for Plaintiffs-Appellants

ORAL ARGUMENT REQUESTED

POINTS AND AUTHORITIES

Standard of Review

Cases

Pyne v. Witmer, 129 Ill. 2d 351 (1989)……………………………………………………………. 6

BlueStar Energy Services, Inc. v. Illinois Commerce Comm’n,

374 Ill. App. 3d 990 (2007)……………………………………………………………………………… 6

Delaney Electric Co. v. Schiessle, 235 Ill. App. 3d 258 (1992)……………………….. 6

Williams v. Manchester, 228 Ill. 2d 404 (2008)……………………………………………….. 6

Other

Restatement (Second) of Agency § 228, Comment d………………………………….. 6

735 ILCS 5/2-1005(c) (West 2006)…………………………………………………………………. 6

The trial court erred in finding that Mesich’s trip to work was not within the scope of his employment.

A. Taking ladders home for possible use on job made trip within scope of employment.

Jacks v. Woodruff, 9 Ill. App. 2d 224 (1^st Dist. 1956)……………………………………….. 7-8

B. Picking up supplies for next day made drive within scope, despite after-work drinking binge.

Sloma v. Pfluger, 125 Ill.App.2d 347 (2d Dist. 1970)………………………………………. 8-10

Hogan v. City of Chicago, 319 Ill. App. 531 (1943)…………………………………………. 10

Urban v. Industrial Commission, 34 Ill2d 159 (1966)……………………………………… 10

Christian v. Chicago & I. M. Ry. Co., 412 Ill 171 (1952)…………………………………. 10

C. A possible coffee stop would make no difference.

Pyne v. Witmer, 129 Ill. 2d 351 (1989)……………………………………………………………. 12

Sloma v. Pfluger, 125 Ill.App.2d 347 (2d Dist. 1970)………………………………………. 11

D. Employee’s plan to pick up tool created issue of fact for jury.

Fakhoury v. Vapor Corporation, 154 Ill.App.3d 531 (1^st Dist. 1987)………………… 12-13

Fakhoury v. Vapor Corporation, 218 Ill.App.3d 20 (1^st Dist. 1991)…………………… 13

E. Trip to unload equipment was within scope.

Leszinske v. Grebner, 89 Ill.App.2d 470 (2d Dist. 1967)…………………………………. 13-15

F. Assignment to different job sites creates fact issue.

Leszinske v. Grebner, 89 Ill.App.2d 470 (2d Dist. 1967)…………………………………. 14

G. Travel incident to test was partly for employer’s purpose.

Pyne v. Witmer, 129 Ill. 2d 351 (1989)……………………………………………………………. 15-16

H. Restatement criteria met as to scope of employment.

Cases

Korczak v. Sedeman, 2005 U.S. App. Lexis 21531 (N.D. Ill. 2004)………………….

Other

Second Restatement of Agency §228 (1958)…………………………………………… 16-17

I. Requirement at least creates issue of fact.

Pyne v. Witmer, 129 Ill. 2d 351 (1989)……………………………………………………………. 19

Laird v. Baxter, 272 Ill. App. 3d 280 (1st Dist. 1994)……………………………………….. 18

Urban v. Industrial Commission, 34 Ill2d 159 (1966)……………………………………… 18

Nattens v. Grolier Soc., Inc., 195 F.2d 449 (7th Cir. Ill. 1952)………………………….. 18

Katsinas v. Colgate-Palmolive, 299 Ill. App. 347 (3^rd Dist 1939)…………………….. 18-19

Reilly v. Peterson Furniture, 314 Ill. App. 46 (1^st Dist. 1942)…………………………… 19

Jacks v. Woodruff, 9 Ill. App. 2d 224 (1^st Dist. 1956)……………………………………….. 19

Sloma v. Pfluger, 125 Ill.App.2d 347 (2d Dist. 1970)………………………………………. 19

STATEMENT OF THE NATURE OF THE CASE

This appeal concerns whether defendant Daniel Mesich was acting within the scope of his employment as he was driving early one morning to a jobsite to which he had been assigned that day by his employer Imperial Construction Associates, Inc. (“Imperial”), and to which he was required by Imperial to bring his own tools for use on the job. As he was on his way to work, Mesich crossed the center line and crashed into the vehicle driven by Pamela Watson. Pamela Watson and her husband Darryl Watson sued Mesich, alleging negligence, and later added Imperial, alleging respondeat superior liability. The issue here was not raised by the pleadings, and no jury trial took place. Imperial moved for summary judgment, alleging it owed no duty to plaintiffs as Mesich was acting outside the scope of his employment at the time of the crash. The trial court granted Imperial’s motion.

ISSUE PRESENTED

Whether defendant Daniel Mesich was acting within his scope of employment in driving to a jobsite assigned by his employer Imperial where:

1) Imperial required Mesich to bring his own tools needed to conduct his work at changing jobsites, though it did not pay him for travel time;

2) Mesich was driving with his tools directly to the jobsite that morning, with only the possible exception of a coffee stop; and

3) Imperial was required by its contract on the job to furnish all materials and supplies as well as labor and supervision to complete its work at the jobsite.

JURISDICTION

In granting summary judgment to Imperial, the trial court ordered its ruling “final and appealable pursuant to Illinois Supreme Court Rule 304(a).” (A2)

STATEMENT OF FACTS

On August 28, 2006 at about 5:28 a.m., Daniel Mesich was driving south on Rt. 59 in Plainfield, Illinois, at the intersection with Lockport Street. (A12-13, A15) Mesich testified in deposition that his Chevy Tahoe crossed into the northbound lane and crashed into plaintiff Pamela Watson’s vehicle, and that he had swerved to avoid a dump truck that pulled in front of him at the intersection. (A15)

At the time of the accident, Mesich was going directly to the jobsite from his home though he may have stopped for coffee. (A19-20). His home was in Plainfield. (A3a) He had travelled only a few minutes that morning. (A27) He had his tools for work with him at the time of the crash. (A20)

Mesich worked for Imperial Construction Associates as an Ironworker involved in the erection of steel structures. (A5) As a condition of his work, Imperial required him to bring his own tools to the jobsites. (A6) He purchased those tools himself. (A6) He had been employed as a full-time employee for Imperial for about seven years at the time of the crash. (A3-4) That morning, he was assigned to work at McCormick Place in Chicago. (A28)

Mesich was assigned to “drive to a job site, a different job site every morning.” (A26) He typically had to arrive by 7 a.m. (A11) He suspected location assignments were made by office workers throwing darts at a board. (A7) Mesich usually used Mapquest to learn the route to the jobsite. (A23) He was paid by Imperial each week for the number of hours worked at the jobsites. (A8-9) He received no reimbursement for mileage or gas, but was free to turn down a job if he deemed it to be too far away. (A24) His hourly pay and medical insurance were his only compensation for his work, including his provision of his own tools at the jobsites. (A24-25)

As a subcontractor at the McCormick Place jobsite, Imperial was, among other things, required to “provide all supervision, and materials and perform all labor necessary” to complete its work at the site. (A29-30)

ARGUMENT

Standard of Review

Summary judgment is only appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2006). “‘In addition, the court must draw all reasonable inferences from the record in favor of the nonmoving party.’” BlueStar Energy Services, Inc. v. Illinois Commerce Comm’n, 374 Ill. App. 3d 990, 993-94 (2007), quoting Delaney Electric Co. v. Schiessle, 235 Ill. App. 3d 258, 262 (1992). Summary judgment is a drastic method of disposing of litigation and should only be granted where the movant’s right to judgment is clear and free from doubt. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). Summary judgment rulings are reviewed de novo on appeal. Id. at 418.

To be held vicariously liable under the doctrine of respondeat superior for an employee’s torts, the tort must have been committed within the scope of employment. Pyne v. Witmer, 129 Ill. 2d 351, 359 (1989). Where the scope of employment is at issue, summary judgment

is generally inappropriate. … Only if no reasonable person could conclude from the evidence that an employee was acting within the course of employment should a court hold as a matter of law that the employee was not so acting.

Id.; accord Restatement (Second) of Agency § 228, Comment d, at 505 (1958). Where reasonable persons could draw divergent inferences from the undisputed facts, “an issue should be decided by the trier of fact and summary judgment denied”. Pyne, 129 Ill.2d at 359.

The trial court erred in finding that Mesich’s trip to work was not within the scope of his employment.

Overview

Substantial case law concerning employees who travel to and from work while carrying tools required for the job show the trial court erred in finding that, as a matter of law, Mesich was not acting within the scope of his employment at the time of the crash in issue. Indeed, the cases show that Mesich was within the scope of his employment while driving to work on the morning of the crash. Even if the fact that Mesich was not paid for driving time were given weight toward finding that he was not acting within the scope of his employment, the opposing facts that he was required to bring his tools and was required to drive to different jobsites daily as assigned by Imperial would at least present a jury question as to the scope.

A. Taking ladders home for possible use on job made trip within scope of employment.

In Jacks v. Woodruff, 9 Ill. App. 2d 224 (1st Dist. 1956), Clarence Woodruff employed his brother Vern to help paint Clarence’s Evanston house and to assist in remodeling its shop in the rear. Vern left the job at the end of the day, hauling two extension ladders on the top of his car to his home in Des Plaines, thinking that the ladders would be available if they were needed at the next day’s job in Des Plaines. Id. at 232. On the drive, Vern ran into Edmund Jacks, a pedestrian, who sued. At trial, Clarence denied authorizing the use of the ladders at his house or even knowing about them, and Jacks presented evidence of admissions to the contrary. The jury rendered its verdict in favor of Jacks. The trial court entered a judgment notwithstanding the verdict in Clarence’s favor, finding as a matter of law that Vern was not acting as Clarence’s agent as he drove home after work on the evening of the crash. The scope of Vern’s employment, as reflected in the evidence presented at trial, was the only issue on appeal. The appellate court reinstated the verdict, finding that the jury had been presented with competent evidence that Vern was his brother’s agent at the time of the occurrence. Id.

In this case, in contrast to Jacks, the evidence is undisputed that Mesich was transporting tools that he was required to take to work. Imperial admitted this. (A28-28a) Just as it was appropriate for the jury to find that Vern was his brother’s agent, acting within the scope of his employment at the time of the crash, it would be appropriate for a jury to reach the same conclusion in this case, if a jury would have to consider the matter at all. Like Vern, Mesich was driving while carrying equipment for the job at the time of the crash. Unlike Vern, Mesich was specifically required to bring his tools to work. That requirement suggests that, as a matter of law, Mesich was acting within the scope of his employment at the time of the crash, not vice- versa, as found by the trial court in granting summary judgment to Imperial.

B. Picking up supplies for next day made drive within scope, despite after-work drinking binge.

Sloma v. Pfluger, 125 Ill.App.2d 347 (2d Dist. 1970), also shows the error the trial court made in this case. Sloma involved two employees of Wood Construction Company, Richard Lee Carpenter, a skilled worker who was assigned to various job sites, and James Sloma, a laborer-apprentice assigned by the company to work with Carpenter. Sloma lived about a half block from Carpenter, and rode with Carpenter in the latter’s pickup truck to and from the various jobsites assigned by Wood. On the day in question, Carpenter and Sloma finished the job, left the jobsite at about 3:30 p.m., and drove to a tavern near Belvidere where they often stopped while working in the area. Over the course of about two and a half hours, Carpenter drank five or six bottles of beer in the tavern. After leaving, Carpenter crashed his pickup and died. Sloma was seriously injured.

Whether Carpenter and Sloma were acting within the scope of their employment at the time of the crash were at issue in the case. Sloma testified that Carpenter said he was on his way to pick up supplies needed for work the next day. Wood maintained trailers in different locations – one of which was near Carpenter’s home — from which company superintendents or employees would obtain supplies which they would carry to jobsites. Only Carpenter, not Sloma, was authorized and expected to pick up supplies for jobsites, and no evidence showed Sloma had that obligation. Thus, the court found the facts suggested that Sloma’s own

scope of employment began and ended at the jobsite; that there was nothing to take him out of the normal rule that travel to and from the place of employment is beyond the realm of the employment relationship; and that one injured in the course of such travel is not injured as an employee.

Id. at 356, citing Urban v. Industrial Commission, 34 Ill2d 159, 161, 214 NE2d 737 (1966); Christian v. Chicago & I. M. Ry. Co., 412 Ill 171, 175, 105 NE2d 741 (1952).

Accordingly, the court found that Sloma was not acting as Wood’s agent at the time of the crash (and thus was not barred from bringing a personal injury claim against Wood).

But the court found that whether Carpenter – even after his drinking binge — was acting within the scope of his employment presented a question that was properly put to the jury to decide. Though the court acknowledged that Carpenter was “on a lark of his own” at the tavern, it upheld the verdict against Wood. It found:

The mere fact that Carpenter was driving his own truck and not one belonging to Wood, is not decisively significant. Unlike most employees, Carpenter brought the supplies needed for a particular day’s work to the jobsite, and Wood provided a supply trailer, near Carpenter’s home, for his use. Carpenter had a pickup truck so that he could carry these supplies. Ignoring for a moment the personal lark of Carpenter and the question of the effect of the deviation from the course of his employment, inasmuch as he was intending to get his supplies for the next day, he was driving his pickup truck with the implied authority of Wood.

The lack of immediate supervision over Carpenter in picking up his supplies, appeared no less than that exercised over him at the jobsite. Wood knew that Carpenter picked up his own supplies and provided a special trailer for this purpose. Thus, Carpenter’s use of his own vehicle for his employer’s business was not only with the latter’s knowledge and consent, but also with his encouragement. When so driven, it was within the course of Carpenter’s employment.

Id. at 356-357, citing Hogan v. City of Chicago, 319 Ill. App. 531, 539, 543-546, 49 NE2d 861 (1943).

In this case, too, Mesich used his own vehicle for his employer’s business. Instead of picking up materials needed for the next day’s work for subsequent transport to the employer’s job site, Mesich took his own tools to each job site assigned on a daily basis. Not only did Imperial know of and consent to this arrangement, it required Mesich to so transport his tools to the ever changing job sites. On the day of the accident at issue, Imperial assigned Mesich to a job where Imperial itself was contractually required to bring all the materials necessary to complete its work. Mesich’s tools were, by reasonable inference, among those materials necessary for the company to fulfill its contract.

C. A possible coffee stop would make no difference.

The “critical” and difficult issue in Sloma, which the court found appropriate for the jury to resolve, was whether Carpenter had discontinued his extended deviation from his course of employment, and returned to acting within the scope of employment when he left the bar to pick up supplies. Here, no such difficult issue exists. Mesich’s testimony establishes he was heading directly to work on the morning of the crash, with only the possibility of a stop for coffee on the way. Such a stop – if one even occurred – would amount to no more than a minor deviation which could not, as a matter of law, take Mesich’s trip outside the scope of his employment since “[a]n employee may combine personal business with the employer’s business at the time of negligence, yet the employer will not necessarily be relieved of liability on that account. … Where an employee’s deviation from the course of employment is slight and not unusual, a court may find as a matter of law that the employee was still executing the employer’s business.” Pyne, supra, 129 Ill.2d at 361.

Given that in Sloma, the employee’s travel in his own vehicle, with the employer’s concurrence, after the end of the workday to pick up tools for the next day’s job was deemed to be within the scope of employment, so, too, must an employee’s travel to work and delivery of tools, at the employer’s demand, be within the scope of employment. Thus, Mesich was acting within the scope of his employment as he drove, with the required tools in his truck, towards that day’s jobsite.

D. Employee’s plan to pick up tool created issue of fact for jury.

Fakhoury v. Vapor Corporation, 154 Ill.App.3d 531 (1st Dist. 1987), also involved a question of tools and scope of employment. In Fakhoury, James Guyon was a serviceman employed by Vapor. Like Mesich, he drove his own car, and like Mesich he was regularly assigned to work at different job sites. On the day of the accident, Guyon was working at Vapor’s plant in Chicago. He had been assigned to drive to Madison, Wisconsin the following day, and planned to leave his home at 6 a.m. When Guyon left work in Chicago at 4:30 p.m., he stated he drove to a hardware store to buy a carpenter’s square for his use the next day. When the square wasn’t available, Guyon returned to his car and was on the way to a lumber store in the area when the accident occurred. Guyon did not purchase the carpenter’s square that day, and used the customer’s square the next day in Madison. On these facts, the appellate court determined that the trial court erred in directing a verdict on respondeat superior in plaintiff’s favor since “verdicts ought to be directed and judgments notwithstanding the verdict entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand.” Id. at 536. On retrial, after hearing Guyon’s testimony concerning his intended personal use of the square, the jury decided in favor of Vapor, which contended that Guyon was on a personal trip at the time of the accident. Fakhoury v. Vapor Corporation, 218 Ill.App.3d 20, 24 (1st Dist. 1991).

E. Trip to unload equipment was within scope.

In Leszinske v. Grebner, 89 Ill.App.2d 470 (2d Dist. 1967), the court determined as a matter of law that the passenger of a vehicle was within the scope of his employment when he died in a car crash. Otto Grebner, the driver, employed Lyle Leszinske to paint houses. The crash occurred when Grebner lost control of his vehicle and swerved into oncoming traffic about 6:30 p.m. The two had finished painting for the day and were on their way to unload equipment. That was enough, the court found, to make the incident within the scope of Leszinske’s employment. The court explained:

It is generally held that accidents which occur while an employee is going to and from his place of employment do not arise out of and in the course of employment. [citations omitted] This general rule, however, is not applicable where the employee’s trip is determined by the demands of his employment or where his duties as employee take him to the place of his injury. [citations omitted]

In the case at bar, the general “going to and coming from work” rule obviously cannot be applied. Leszinske’s employment for the day had not ended if he was going to Grebner’s workshop to help unload the station wagon. To fulfill this obligation of his employment, Leszinske was riding with his employer, Grebner, at a time when and at a place where he might reasonably be expected to be. Leszinske was “in the course of his employment.”

Id. at 476.

In this case, while Mesich did not have his employer at his side at the time of the accident, he was carrying required equipment to the day’s jobsite. That fact alone is adequate to at least create an issue for the jury to decide under Jacks, Sloma, Fakhouri, and Leszinske.

F. Assignment to different job sites creates fact issue.

Furthermore, Mesich did not supply his tools each day to the same jobsite. Rather, he was assigned to a different jobsite on a daily basis. (A 26) That is why he had to carry his tools with him. If he never changed jobsites, there would be no need to transport the tools. He could simply leave them. This fact, too, shows the trial court’s error in determining as a matter of law that Mesich was not acting within the scope of his employment as he drove to the assigned jobsite on the morning of the crash. Leszinske noted the importance of the assignment not being to a regular place of work since

there is a critical distinction between travel that results from the employee’s decision as to where he wants to live, and travel that is required by the exigencies of the job. This distinction suggests to us the possible application of the [Worker’s] Compensation Act [as the work would have been within the scope of employment] even if Grebner and Leszinske were only returning to Grebner’s house.

Leszinske, 89 Ill.App.2d at 477. Thus, Leszinske indicates that Mesich’s travel to different worksites on a daily basis alone is enough to at least create an issue of fact as to whether he was within the scope of his employment on his drive to work on the morning of the crash.

G. Travel incident to test was partly for employer’s purpose.

In Pyne v. Witmer, supra, the Illinois Supreme Court also focused upon the issue of whether plaintiff’s deceased was on a frolic outside his scope of employment after he took a test for which his employer at least temporarily paid. As in Sloma, however, the discussion concerning scope of employment strongly suggests that Mesich was acting within the scope of his employment at the time of the crash.

William Witmer left his workplace in Streamwood near the end of a scheduled workday and drove to Rockford to take an evening test to be certified as an automobile mechanic. His employer D.R.W. Enterprises, Inc., which operated a gas station, did not pay him wages, mileage or expenses for his trip. D.R.W. did issue a check to cover the test fee, though it may have expected to be reimbursed by Witmer. Nonetheless, the parties agreed that Witmer was within the scope of his employment while he took the test, and during “travel incident thereto.” Pyne, supra, 129 Ill.2d at 356. By the same measure, Mesich was within the scope of his employment while on a trip incident to transporting his ironworker tools and essential work equipment to his employer’s jobsite.

About two and a half hours after Witmer completed the test, Witmer crashed the car he was driving. It was 10:30 p.m. Blood tests showed Witmer was drunk. The issue was whether he was still in the scope of employment at the time of the crash. The high court upheld the appellate court’s reversal of summary judgment in favor of D.R.W., finding that factual issues precluded a determination that Witmer was on a “frolic” that took him outside the scope of employment during the two and a half hours subsequent to the test.

In its discussion, the court stated,

Generally, an employee traveling to or from work outside actual working hours is not in the scope of employment, but an exception exists for employees who are caused by their employers to travel away from a regular workplace or whose travel is at least partly for their employers’ purposes rather than simply serving to convey the employees to or from a regular jobsite. [citations omitted]

Pyne, 129 Ill.2d at 356. (emphasis added)

In this case, the exception to the general rule applies. In transporting his essential ironworker trade tools (welding equipment) to that day’s worksite, Mesich was “at least partly” traveling for his employer’s purposes, rather than simply getting to work. Imperial required Mesich to carry his equipment to the jobsite because it knew that, without it, Mesich could not perform the work he was employed to do.

H. Restatement criteria met as to scope of employment.

In Pyne, the court cited the guidance offered by the broad criteria set forth in the Second Restatement of Agency for determining whether an employee’s action falls within the scope of employment. The Restatement provides:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Second Restatement of Agency §228 (1958).

Here, each of the Restatement criteria applies. Mesich was employed to work at daily assigned jobsites, and to bring his tools for use at the sites. Thus, his transportation of his tools was inextricably linked to the work he was employed to perform at that day’s assigned jobsite. Since he was required to bring his tools with him, the area of travel was necessarily within employer-authorized time and space limits, just as the travel area was found to be within authorized limits — or at least an issue of fact existed as to whether it was within authorized limit — in the scope of duty cases involving travel and discussed above.

In Korczak v. Sedeman, 2005 U.S. App. Lexis 21531 (N.D. Ill. 2004), the court found an issue of fact suitable for trial as to whether an employee who transported a co-worker back to his hotel at the end of the work day was acting within the scope of his employment. The employer argued that he was free to do his own business once he clocked off work, and therefore the ensuing accident was outside the scope. But the court noted that the employee not only would transport three or four employees to the jobsite in the minivan lent to him by the employer, but that it was his responsibility to take a particular co-worker back to the hotel at the end of the day because that worker had no other method of returning to the hotel after work. Id. at *10. The court concluded that Thermal Solutions, the employer,

clearly benefited from Sedeman’s use of the minivan. First, Sedeman provided transportation to three to four workers on a daily basis. Without relying on Sedeman to provide this service, Thermal Solutions could not have enjoyed the services of the other workers. Second, by renting a minivan and relying on one worker to provide transportation for others, Thermal Solutions was able to save money on rental costs and gasoline. Moreover, if Thermal Solutions directed Sedeman to provide transportation to other workers, then the act of traveling to and from work is of the kind Sedeman was hired to perform and occurred within the time and scope of his employment.

Id. at *12-13. Similarly, Imperial benefited from Mesich’s use of his truck to transport his tool to jobsites. Had he not done so, Imperial itself would have had to transport Mesich and his tools to the day’s assigned jobsite. Thus, Mesich’s act of traveling to work in his personal vehicle in order to transport his essential trade tools was, in fact, part of the work that Mesich was required to perform for Imperial.

I. Requirement at least creates issue of fact.

Like sales agents and other employees required to carry their wares to travel to different locations on a daily basis, Mesich had to carry his trade tools as he traveled to assigned jobsites that changed daily at the direction of Imperial. Sales agents and other traveling employees have been found to have acted within the scope of their employment as they made their rounds, even where they were sidetracked with alleged frolics. See Laird v. Baxter Health Care Corp., 272 Ill. App. 3d 280, 298 (Ill. App. Ct. 1st Dist. 1994) (noting “the leniency Illinois courts afford travelling employees.”); Urban v. Industrial Commission, supra, and cases cited therein. At the least, courts have found the scope of agency presents an issue of fact for the jury to decide. See e.g. Nattens v. Grolier Soc., Inc., 195 F.2d 449, 453 (7th Cir. Ill. 1952), Katsinas v. Colgate-Palmolive-Peet Co., 299 Ill. App. 347, 350 (Ill. App. Ct. 1939); See also Reilly v. Peterson Furniture Co., 314 Ill. App. 46 (Ill. App. Ct. 1942).

In the trial court, Imperial emphasized Sloma in arguing that Mesich was acting outside the scope of his agency when he drove to work. But unlike the passenger apprentice in that case, who had no duties with regard to unloading materials after work, and like Carpenter, the employee who had such duties, Mesich was required to drive his truck and transport his essential trade tools to the ever changing jobsite. Mesich’s doing so in a direct drive without any frolics was at least as much within the scope of his work as was Carpenter’s driving to pick up materials after a day of work and a lengthy bout of drinking. Sloma, Jacks and other cases discussed above show that Mesich was acting within the scope of his employment as he transported himself and his tools to Imperial’s jobsite on the morning of the crash at issue. At the very least, it cannot be said that “no reasonable person could conclude” this to be the case. Pyne, supra, 129 Ill.2d at 359. Thus, the trial court erred in finding that Mesich was acting outside the scope of his employment and granting Imperial’s motion for summary judgment.

CONCLUSION

WHEREFORE, plaintiffs Pamela J. Watson and Darryl Watson respectfully request this Court find the trial court erred in granting summary judgment to Imperial Construction Associates, Inc., remand the case for trial, and provide guidance to the trial court that Daniel Mesich was acting within the scope of his employment with Imperial on the morning of the crash.

Respectfully submitted,

____________________________

William Lazarus

Law office of Wiliam Lazarus Law office of Gregory T. Mitchell, P.C.

18300 Dixie Highway 18141 Dixie Highway, Suite 111

Homewood, Illinois 60430 Homewood, Illinois 60430

CERTIFICATE OF COMPLIANCE

I, William Lazarus, an attorney, certify that this brief conforms to the requirements of Supreme Court Rules 341(a) and (b). The length of this brief, excluding the appendix pages containing the Rule 341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service, and those matters to be appended to the brief under Rule 342(a), is 18 pages.

________________________________________

William Lazarus

CERTIFICATE OF SERVICE

I, William Lazarus, an attorney, certify that I caused copies of the foregoing Appellants’ Brief to be served upon the persons listed below by mailing, first class postage prepaid, by placing a copy of the brief in a U.S. Postal Service mail receptacle located at 18300 Dixie Highway, Homewood, Illinois before 4 p.m. on September 9th, 2009.

Craig D. Queen, Esq.

Grant, Ross & Fanning

10 South Riverside Plaza

Suite 1770

Chicago, Illinoiis 60606

Bill Porter, Esq.

Chilton Yambert & Porter, LLP

2000 S. Batavia Avenue, 2^nd Floor

Geneva, Illinois 60234

_________________________

William Lazarus

Refocusing with replies

Van Swol v. ISG Burns Harbor, LLC – The issue in this appeal is whether the ISG steel-mill was a co-employer of Darryl Van Swol, thus preventing him under the jurisdictional bar of the Worker’s Compensation Act from suing ISG for negligence in connection to an accident at its plant. The trial court dismissed the action after it determined that Darryl was a co-employee. Our appellate brief detailed the facts showing no employment relationship under the seven factor balancing test set forth in Hale v. Kemp, 579 N.E.2d 63, 67 (Ind. 1991).

On reply, rather than simply responding to ISG’s arguments as to each of the factors, we added perspective by focusing on the contractual documents under which Darryl’s services were provided by his employer, Tranco Industrial Services, Inc., to ISG. Those documents showed Darryl being treated as a commodity by ISG, not an employee. In August, the appellate court reversed the trial court. Since then, the Indiana Supreme Court has granted transfer, which means it will decide the case.

The start of our reply argument in the intermediate appellate court follows:

ISG consistently disclaimed any responsibility for Darryl Van Swol as an employee. In the order documents that resulted in Darryl working a single graveyard shift as a substitute switchman, ISG stated that Tranco was to supply “supervision, labor, equipment to perform switchmens [sic] duties” at its blast furnace. (App. 47, 49) ISG’s requisition and purchase order were the only documents describing the work to be performed that shift. (App. 37) Darryl was not identified by name. Rather, the order forms speak of the “requested quantity” and the “unit cost” and of the “generic” service Tranco, as the “supplier,” was to provide ISG. Tranco’s “service” was just that — the provision of supervision, labor, equipment” to perform a function that ISG’s own employees were unavailable to perform. On the requisition form, Tranco’s service came under the heading “Item” and “Item Type.” On the purchase form,the “service” came under the category for “Part Number/Description”. The “Delivery Area” to which Tranco was to provide its service was “Yards & Transportation Door 0014. (App. 49) These, indeed, were forms, but they were forms that reflected reality. To ISG, Darryl was no more than an unidentified commodity or a service provided by Tranco.

Darryl’s injury during the shift did not change his status with the steelmaker. ISG did not bother to investigate the accident. It left that job to Tranco. (App. 39) ISG did not prepare an incident report. It only does that for its own employees. (App. 35c) Tranco prepared the report. (App. 35b) ISG did not provide medical treatment to Darryl. (App. 40) It did not advise him to see a doctor. Tranco did that. (App. 64)

ISG structured its role so that it would not bear the responsibility of an employer: It did not pay Darryl; it did not cover him with worker’s compensation insurance; it did not provide him with health insurance, or other benefits. (App. 37) Its requisition and purchase order made clear that Tranco, not ISG, was responsible for supervising Darryl’s work as a switchman, and equipping him for the job.

Only after Darryl sought compensation beyond the inadequate payments afforded by worker’s compensation did ISG claim to be Darryl’s co-employer. In doing so, its purpose remained the same: avoidance of responsibility to Darryl. As a supposed “co-employer,” ISG would remain unaccountable for the injuries its negligence had caused. Worker’s compensation would be the only recovery Darryl could hope to obtain, and ISG did not provide such insurance coverage for him. (App. 37)

Safeguarding dangerous design – a brief sample

John Mesman’s leg was cut off in an industrial accident that could have been cheaply and easily averted by inclusion of safety devices on a newly rebuilt crane. We sued Crane Pro and won at trial. But the judge took the verdict away, finding the danger was too “open and obvious” to allow recovery. Two recent Indiana appellate decisions had invoked the open and obvious doctrine. We argued that those decisions stood counter to a series of three decisions in 1990 by the Indiana Supreme Court. The Seventh Circuit agreed with our argument as to the open and obvious doctrine, and ordered a new trial.

Crane Pro’s crane had lifted its load of steel sheet into an overhead obstruction. The load tilted, and steel sheets fell off, slicing off John’s leg. Here’s a portion of our brief that followed our detailed factual statement and a discussion of the Indiana Supreme Court’s application of the Indiana Products Liability Act (IPLA) to eliminate the open and obvious hazard doctrine as an absolute defense.

From our brief:

Protecting the Crane, Endangering the Workers

Crane Pro made another design misstep, making its crane considerably more dangerous than the crane it replaced. While the former crane could stop on a dime, Crane Pro set its renovated crane to decelerate for up to three seconds — or about 12 inches — before coming to a halt. As a result, once the spreader beam clanged against the cab, there would be no time for a quick fix as there had been in the past. Although he tried, the operator couldn’t simply punch a button to throw the crane into reverse and re-balance the uneven load.

The trial judge paid particular attention to the delayed deceleration of the hoist in her determination that no reasonable jury could hold Crane Pro even partly responsible for the accident. No novel scientific theories were involved in the explanation of the accident. The spreader beam hit the cab. Crew members Alex Arce and Anthony Flores watched as the hoist continued to rise and the steel sheets pressed against the cab and tilted ever more precariously before falling. Crane operated Raymond Van Til testified to trying to put the hoist into reverse, and not realizing that he was unable to accomplish that maneuver immediately.

But the judge deemed what actually happened to be too “open and obvious” to be legally relevant. Instead of accepting the causal connection between the timed delay on the hoist and the crane losing its load, she demanded precise studies to show the crane should have been set to stop in less than three seconds.

No matter that defendant’s company magazine recognized that a mere quarter second timed delay for stopping poses a problem for crane operators. No matter than plaintiff’s experts testified in concrete terms comprehensible by any layperson about the danger posed by the delay. No matter that the threatened danger is, in fact, what happened, according to eyewitnesses. Because of her reliance on the “open and obvious” rule, the judge rejected the obvious, and insisted on the sublime. She demanded scientific evidence to establish that a three second delay itself posed an unacceptable risk.

But no novel scientific theory was at issue in this case. In and of itself, the crane’s three second deceleration posed no danger. Had a $500 limit switch been installed to prevent the crane from hoisting its load into the cab, the danger would have been averted, and the delay would have made no difference whatsoever. But, due to her unbending insistence on the “open and obvious” doctrine, the judge was unwilling to consider how the design defects related to the hazard and the resulting tragedy. Unwilling to consider the realities, the judge insisted upon transcendental proof in the name of science. Indiana law,however, is not so finicky in cases where hazards are clear.

Common Sense Defects

Consider the Indiana Supreme Court cases that applied the IPLA to avoid the “open and obvious” defect premise of Bemis. In Koske, the court did not insist on elaborate studies establishing as a matter of science that the open blades of a meat package machine constituted a defect. It was enough that the machine lacked inexpensive safety guards on its blades, which sliced Koske’s hand as she attempted to push through a frozen pork jowl, and that engineering experts had testified to other feasible, and safer, designs. Here, as in Koske, experts testified to feasible designs that would have guarded against the hazard at little cost.

Similarly, in FMC v. Brown the court did not insist upon studies showing how close a crane could be situated to power lines before it would be deemed scientifically too close. Expert testimony established that a proximity warning device was a feasible, available and well understood instrument to alert the operator to being too close to a power line. The testimony also established that insulation links could guard against electrocution. That was enough The court did not insist upon scientific studies proving, as an abstract matter, when such devices might best be deployed.

Judge Springmann, however, relied on the case Whitted v. General Motors Corp., 58 F.3d 1200 (7th Cir. 1995). That case involved a 265-pound plaintiff whose seat belt webbing in his six-year-old Chevrolet Nova separated when his car hit a tree at an uncertain speed. It was not clear whether the injuries Whitted sustained were due to the problems with the seatbelt. In upholding summary judgment for the defendant, the court found that Whitted failed to present evidence, other than the accident itself, to show the seatbelt’s design was flawed, and to show that a better, alternative design was feasible. In this case, in contrast, plaintiffs presented evidence establishing what happened, why it happened, and how it could have been avoided.

In distinguishing Whitted, the Indiana appellate court in Ford Motor Co. v. Reed, 689 N.E.2d 751 (Ind. Ct. App. 1997), noted that plaintiffs did not have access to the area of their car where a fire broke out, and that the car was only five months old. Though the court also noted that plaintiffs’ expert could only “indicate” that an electrical short caused the fire, and could not point to the specific wire at fault, the question of Ford’s liability was still up to the jury to decide. Again, the court required no precise scientific evidence to support the jury’s verdict.

In rejecting the use of the “open and obvious” doctrine to bar product liability lawsuits, the Florida Supreme Court discussed the outrageous absurdity of applying such a rule to allow fans to be built without a protective cage. Auburn Machine Works, Inc. v. Jones, supra. Under the theory applied by Judges Moody and Springmann, the lack of a cage might still be considered in a case where a user’s hand was chopped off. But plaintiffs would first have to present scientific studies establishing that fans without such cages are, in fact, more dangerous than fans with the safeguard. That Catch 22 would never be overcome because no research would bother with conducting such a study to prove the obvious.

Indiana Department of Transportation (INDOT) and the State of Indiana v. Howard

We represented the parents of Amber Howard, who drove her car off a steep drop-off at the edge of a highway under construction one dark night. Required barrels and safety cones were not set out to mark the hazard. In an interlocutory appeal from the denial of summary judgment, INDOT argued that its only duty was to supervise the contractor on the job. The appellate court found otherwise. INDOT v. Howard, 879 N.E.2d 1119 (Ind. Ct. App. 2008) The case is now slated for trial in July 2009.

Our brief argued for application of precedents, including Chandradat v. State, 830 N.E.2d 904 (Ind. Ct. App. 2005), transfer den., showing that INDOT had a non-delegable duty to maintain safe road construction. Below is a section of the brief that wove together previously cited facts with legal theory.

III. Genuine issues of material fact exist concerning INDOT’s negligent supervision of E& B Paving’s work.

Even if, as INDOT contends, the agency’s non-delegable duty to maintain the safety of the state highway extended only to a duty to supervise E&B, it was not an abuse of discretion for the trial court to vacate the summary judgment in favor of INDOT. The facts of this case show genuine issues of material fact as to whether INDOT’s supervision was adequate.

On the day of the crash that killed Amber, INDOT knew that the temporary tape marking the center of sections of State Road 8 under construction had come off, just as it knew the same problem had been occurring since the week before. INDOT also knew on the day of Amber’s death that its contractor had failed to place required drums to mark the edge of the road in the vicinity of Amber’s crash. While the regulations called for such barrels every 200 feet, there were no barrels for at least an eighth of a mile, and perhaps as much as a half a mile, prior to the site of Amber’s crash. Nor were cones in place, allowed in lieu of barrels during daylight. Since INDOT was specifically aware of the need for more barrels, it must also have been aware of the lack of cones and marking tape. While INDOT did request its contractor put in barrels, there is no evidence that it followed up to insure the job was done before nightfall, when the danger of the unmarked road with steep edges would heighten and when the barrels were required to be placed. In fact, the job wasn’t done, and the agency did not bother to remind its contractor of the need for the barrels and tape until the next day, after Amber’s death. The evidence also shows INDOT failed to insure that E&B put down the required marking tape and cones that day. Under these circumstances, it is an issue of fact as to whether INDOT adequately supervised E&B’s work.

In carrying out its duty to supervise, INDOT was required to exercise reasonable care. In Bouras, supra, 423 N.E.2d at 744-745, the court discussed this general duty, and noted that it

arises regardless of whether the State has actual knowledge or notice of a defect. Where there is actual knowledge by the State of an unsafe condition, it is obviously unreasonable and imprudent not to act to remedy the danger. However, the State also is chargeable with knowledge of a dangerous condition when the condition is of such a nature the State authorities or its agents could in the exercise of reasonable diligence, have discovered and corrected it. [citation omitted] Where there is actual or constructive knowledge of an unsafe condition, there is a breach of the duty of care if the State does not act.

INDOT does not deny the existence of the danger, and its duty to act. The only question is whether its duty was fulfilled simply by asking its contractor to put out additional warning drums. In asserting that to be the case, INDOT relies upon E&B’s “yes” answer when asked whether “it would be appropriate for INDOT to rely upon E&B to carry out its request to place more barrels on a particular project?” (App. 63, Br. 11) But E&B Paving’s answer was a given. What company would assert that it is not appropriate for a regulatory agency, and employer, to rely upon it? A reasonable jury, however, could find any such reliance was not reasonable, given the seriousness of the danger and given E&B’s repeated failures with the road marking tape. In the end, it is up to the jury, weighing all the facts, to determine whether INDOT acted appropriately, and not for this Court to do so as a matter of law based on the inevitable claims by a contractor that it could be trusted.

Indeed, if INDOT could merely rely on verbal promises by its contractor that safety measures would be undertaken, there would be no need for supervision in the first place. The incorporation of the INDOT safety specifications into the E&B construction contract alone would be enough for the agency to claim that it had adequately supervised E&B’s specifications. If INDOT can, as a matter of law, rely solely upon a contractor’s verbal assurance that work will be done according to specifications, it should even more clearly be able to rely upon the contractor’s written, binding contractual promise that the work will be done. But a promise is not performance, and a mere promise and acceptance of a duty by the contractor cannot, as a matter of law, relieve INDOT of its duty to supervise highway construction. To hold otherwise would reduce the agency’s duty to supervise to a mere matter of insuring that formalities are met.

Aside from its statutory duty to, at the very least, adequately supervise the work of its contractor, INDOT can be held liable under operation of general negligence principles. The elements of a negligence action have long been recited by courts in Indiana and elsewhere as duty, breach, causation and harm. City of Gary v. Smith & Wesson,801 N.E.2d 1222, 1241 (Ind. 2003). The state’s general duty to exercise reasonable care in the maintenance of its highways for the safety of the motoring public is well established. See e.g. Bouras, supra, 423 N.E.2d at 744. Where duty is already recognized, it is to be followed, and the court need not engage in a balancing test to determine its existence. City of Gary, supra, 801 N.E.2d 1241. INDOT’s common law duty to act with reasonable care is not pre-empted by the agency’s statutory obligations of care. See Picadely, Inc. v. Colvin, 519 N.E.2d 1217, 1220 (Ind. 1988). Aside from duty, the remaining elements — breach, causation and harm — typically are questions to be answered by the jury, not the court. Peak v. Campbell, 578 N.E.2d 360, 361 (Ind. 1991).

In this case, the ultimate harm is clear. Amber is dead. The monetary extent of that harm can only be decided by the jury. Breach of duty, and causation, as in the usual case, also pose fact questions suitable for the jury to decide.

To determine whether INDOT breached its duty of reasonable care, the standard to be applied is that care which would be exercised by an ordinary prudent person under the circumstances. Bouras, supra, 423 N.E.2d at 744. The same reasonably prudent person standard is to be used in specifically determining whether the agency was negligent in its supervision of E&B. Stumpf v. Hagerman Construction, 863 N.E.2d 871 (Ind.Ct.App. 2007), citing Chandradat, supra, 830 N.E.2d at 908.

Since INDOT called for the placement of more orange barrels, it is a reasonable inference that the agency actually knew of the more than three inch drop-off from the unmarked edge of State Road 8. After all, barrels were only required to be placed when the drop-off was greater than three inches. INDOT admitted that a drop-off of that height posed a hazard. Since INDOT noted the need for new marking tape, it is also a reasonable inference that INDOT knew the road was unmarked in portions of the construction zone. Nightfall would, inevitably, increase the danger, and bring the conditions so graphically described by the investigating police captain: “[O]nce I got past the section of road that had the orange and white barrels alongside of it … I had to slow down because I couldn’t see the road, I couldn’t see the berms, I couldn’t see anything at all at that point, and there was nothing on the edge of the road such as a cone or a barrel that would mark the side of the road.” (App. 103, emphasis added) INDOT’s own specifications applicable to the project required the orange drums to be in place by nightfall and allowed placement of cones during the day. Thus INDOT itself recognized the increased danger, and its corresponding responsibility to make sure the drums were in place before darkness fell. It failed to insure that the cones and drums were placed immediately,and it failed to insure that the drums were in place by the end of the day.

General negligence principles “involve a balancing of the likelihood of harm, and the gravity of harm if it happens against the burden of the precautions which would be effective to avoid the harm.” Miller v. Todd, 551 N.E.2d 1139, 1141 (Ind. 1990) (citing Larsen v. General Motors Corp. 391 N.E.2d 495, 502 (8th Circ. 1968)). The care required “is always reasonable care. This standard never varies, but the care which is reasonable to require of the actor varies with the danger involved in his act, and is proportionate to it. The greater the danger, the greater the care which must be exercised.” Smith & Wesson, supra 801 N.E.2d at 1242.

Here, the danger was great, and the remedy was simple. INDOT could have followed up its request that its contractor put out more barrels and marking tape that day. Its inspector could have driven the two mile construction site and made sure that these fundamental safety requirements were met by the end of the day. The agency admitted it had the authority to require compliance that day by its contractor. In weighing the likelihood of harm against the gravity of the harm if it happens against the burden of precautions by INDOT, a reasonable jury could find the agency did not act reasonably when it failed to follow up and make sure that its contractor, in fact, put out the required barrels and tape. The question of breach of duty is a matter for the jury to decide, and the trial court did not abuse its discretion in so determining.

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Indiana Department of Transportation (INDOT) and the State of Indiana v. Howard

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