Illinois Lawyer Blog

Saw on Twitter that the California legislature had approved a $20 million dollar settlement to the family of Jaycee Dugard[pictured above] the woman kidnapped as a child and held captive for 18 years by paroled sex offender Phillip Garrido. While being held, Dugard lived in a backyard shack on Garrido's property. Additionally Garriodo fathered two children with Dugard.

Dugard[now 30 years old], her daughters and her mother filed a claim against California Corrections officials alleging they failed to do their jobs properly, and as a result Jaycee was kidnapped, held captive and suffered psychological, phyical and emotional damages.

Dugard resurfaced after Garrido brought her and the children to a meeting with his parole officer.

$20 million isn't near enough for what this poor woman went through.

Interesting opinion recently issued by the Second District of the Illinois Appellate Court. The facts are tragic. In Bell v. Hutsell, Daniel Bell and Ross Trace, both under 21, were invited to a private residence for a party. The party was at the home of Jeffrey and Sara Hutsell, and hosted by their son, Jonathan, an 18 year old high school student. A number of the people at the party were high school kids. Prior to the party, Jonathan's parents told him that they would be monitoring the party to ensure that no alcholic beverages were consumed. Throughout the evening however, while the parents were present, party attendees consumed alcohol that was brought into the party by the students. No alcohol was provided by the parents. After becoming impaired at the party, Daniel Bell left the party in his car. Ross Trace left with him. Shortly after leaving, Bell struck a tree with his car and he and Trace were killed.

Bell's mom filed a complaint against Jeffrey and Sara Hutsell. A number of theories were alleged. The primary hurdle Ms. Bell faced was the long-standing precedent in Illinois that "social hosts"[i.e. people who provide alcoholic beverages to friends or neighbors at their homes] cannot be held liable when people who become intoxicated at house parties then do harm to others or themselves. In order to get around the "social host" bar, Bell alleged that the Hutsells had acted negligently after voluntarily undertaking a duty to monitor the activities and prohibit any drinking.

Defendants moved to dismiss, arguing that since the death of Daniel Bell was ultimately alchohol related, and the Hutsells were social hosts, there could be no recovery. The trial court granted the motion and dismissed the complaint. Plaintiff appealed. The Appellate Court noted that "...the instant complaint alleged something different from the direct or indirect giving, selling or delivery of alcohol. It alleged tha the defendants voluntarily undertook the duty to to prevent the consumption of alcohol on the premises and they negligently performed that duty". The Court went on to note that "...because defendants did not supply the alcohol, store the alcohol, or affirmatively permits its consumption, they were not social hosts." The Court overruled that portion of the trial court's order dismissing the voluntary undertaking counts. I anticipate that the defendants will likely bring this case to the Illinois Supreme Court. Until then, trial lawyers will be looking much more closely at the facts when reviewing alcohol-related injury cases.

Just saw some news that ALL Marie Callendar brand cheesy chicken and rice frozen meals are being recalled in light of salmonella claims in 14 states.

Just hours after finding the body of 3 year old Riley Fox[pictured above] near a Will County, Illinois creek in 2004, investigators located two shoes less than 100 yards from the body. The shoes had been discarded by Scott Eby[pictured below] who recently confessed to the murder. Eby discarded the shoes because they had become muddy when he dragged the poor child to the creek to drown her after sexually assaulting her. And, he had written his name in the shoes. But despite finding the shoes in virtually the same spot as the body, and having the owner's name, authorities never followed up. And there were other clues authorities missed. Like the fact that Eby lived only about a mile from Riley at the time of her murder. And that Eby's mom had called police the morning the Riley had been reported missing. She was concerned about her son who was vomiting and agitated. Incredibly, authorities never put all those clues together. Instead, police focused exclusively on Kevin Fox, the girl's father. He was ultimately charged with her murder in October 2004 and spent 8 months in prison. He was released after DNA evidence excluded him as a suspect. Kevin Fox and his wife later sued Will County and ultimately received an $8.1 million dollar verdict. That case is still on appeal.

The Chicago Daily Law Bulletin recently ran an article by Allision Petty about Illinois Senate Bill 326, which calls for significant reforms to be instituted in Illinois Nursing Homes. The legislation, no doubt prodded by a string of articles in the Chicago Tribune which described widespread physical and sexual abuse at Illinois nursing homes, is expected to be signed very soon by Governor Quinn.

Some of the more important provisions of the bill include:

- increasing the number of hours of nursing care provided each day to patients from 2.5 hours to 3.8 hours;

- requiring hospitals to initiate criminal background checks on mobile patients between 18 and 70 who are being transferred to nursing homes for the first time;

- requiring written consents from patients or their representatives before psychotropic drugs can be used in treatment.

Elder Advocate groups, the Governor's Nursing Home Task Force and Illinois Attorney General Lisa Madigan all contributed to the new legislation.

The May 28,2010 Chicago Tribune had a disturbing story about how authorities failed to take action years ago when charges of sexual assualt were raised against a Chicago area gynecologist. The article, written by Megan Twohey, describes how in 2002, Dr. Bruce Sylvester Smith, allegedly sexually assaulted a patient during a pelvic exam. Immediately after leaving Smith's office, the patient contacted her sister who contacted a rape hotline. The victim then had a rape exam at the University of Chicago Hospital and filed a complaint with the Chicago Police Department. The Cook County State's Attorney[at the time headed by Dick Devine] declined to press charges. No official explanation was provided for that decision at the time.

What makes the decision not to move foward particularly curious was that the authorities were apparently on notice about Dr. Smith. Another woman, Tameka Stokes, had gone to the police in 2000, claiming that she had been raped by Smith. Again, the State's Attorney did not pursue charges. Additionally at least on other woman had made similar charges against Smith but the exact date of those charges was unclear.

In late April, 2010, the Chicago Tribune ran an article describing the allegations made by Stokes and the decision not to press charges. The State's Attorney office then took another look at the 2002 attack and decided to charge Dr. Smith with sexual assault. If convicted he could face 4 to 15 years in prison. The painfully obvious question - if authorities had followed up in 2000, could the 2002 attack have been prevented?

Shia Kapos had an interesting article in this week's Crain's Chicago Business on the "collaborative divorce". Collaborative divorce started in Minnesota about 20 years ago. The objective of a collaborative divorce is to expedite the divorce process, while minimizing the drama and dollars associated with the traditional divorce. Here is how it works - the parties agree to work with divorce lawyers who have received specialized training in collaborative divorce law. Then the parties, and lawyers, sit down, [with the help of financial experts and life coaches[?]] and eventually work out an agreement that is then presented to a judge for approval. If successful, a collaborative divorce generally costs only half of what a traditional divorce will run.

The jury is out as to whether this concept is catching on in Illinois. Only 7% of the divorces filed in 2008 used the collaborative approach. But when parties do decide to try collaboration, it usually works, with only 5% of collaborative divorces having to ultimately return to the traditional divorce approach.

Some lawyers like it. James Galvin, one of the founders of the Collaborative Law Institute of Ilinois noted that the process "allows clients to make decisions about their lives instead of lawyers or judges" Some lawyers aren't impressed. David Novoselsky was involved in a divorce with Mr. Galvin on the other side. It started out as a collaborative divorce, but eventually the parties wound up in traditional litigation. "[Collaborative divorce is] a boondoogle," Novoselsky said. "Collaborative law is the North Shore trend of the week. If you have two reasonable people and two decent lawyers who are interested in helping clients, you don't need to go through this formal process that's been named "collaborative law".

Susan Schwallie, a food market researcher went through a collaborative divorce in 2007 and had a positive experience. But, as the article noted, she still felt like she got the short end of the marriage deal. "No matter how you do it, you feel that way," she noted. "It's not just financial or material loss. It's a loss all the way around."

Wow - for some reason I didn't see this.

In my April 23 2010 post, I discussed the $1.4 million dollar jury verdict against the Boy Scouts of America. The verdict, on behalf of plaintiff Kerry Lewis, represented only the compensatory damages for the sexual abuse he endured back in the 1980's at the hands of Scoutmaster Timur Dykes[pictured below] while Lewis was a Boy Scout. At that time, the jury had not decided on punitive damages.

[Timur Dykes]

Well, the jury came back last week, with an enormous award against the Boy Scouts. $18.5 million dollars!! Lawyers for Lewis had argued that the Boy Scouts were aware that Dykes had abused at least one child in the early 1980's. The Boy Scouts denied they had any such knowledge.

As reported by Steve Daniels in the May 3, 2010 issue of Crain's Chicago Business, Illinois Attorney General Lisa Madigan is unhappy with Nicor. Madigan is claiming that Nicor's gas pipe repair service insurance is a rip-off. The insurance plan, officially known as ComfortGuard, covers the cost of repairing gas pipes in customer homes. According to Madigan's office, the Nicor advertising campaign affiliated with the program is misleading. The ads allegedly imply that customers who don't buy the insurance will have to hire outside contractors to fix the pipes. In reality Nicor is obligated to repair pipes inside the home.

About 20% of Nicor customers[440,000] purchased the insurance, which sells for $4.95 a month. Nicor pocketed $26 million in profits from the program last year - while paying out only $60,000 in claims. Madigan is asking the Illinois Commerce Commission[ICC] to bar Nicor from hawking ComfortGuard.

In a statement, Nicor noted that ComfortGuard "...provides a real value to its many customers..." Nicor is expected to specifically respond to criticisms in hearings before the ICC. The ICC is expected to rule on the controversy sometime in early 2011.

A Portland, Oregon jury recently awarded compensatory damages of $1.4 million to Kerry Lewis, 38[pictured above] in his sexual abuse trial against the Boy Scouts of America[BSA]. The abuse had taken place in the 1980's when Lewis was a young boy. The verdict, in light of the evidence, is hardly surprising.

Lewis was a member of a Boy Scout troop sponsored by The Church of Jesus Christ of Latter Day Saints[commonly called the Mormon Church]. The pedophile Scoutmaster, Timor Dykes, was a member of the church congregation. In 1983, before abusing Lewis, Dykes had gone to a Mormon bishop and confessed that he had already abused 17 boys. Dykes was then briefly barred from participating in Scouts. In 1984, he was then allowed to rejoin the Scouts. Some parents of the Scouts were advised about the Dykes suspension. The parents of Kerry Lewis were not. Shortly after rejoining the Scouts, Dykes sexually abused Lewis.

During the trial, the plaintiff was allowed to offer evidence regarding the "perversion files" - nearly 1000 files documenting cases of suspected sexual abuse in the BSA. The BSA had tried to keep the files confidential, but the Oregon Supreme Court ruled that the files were admissible.

Next week the jury reconvenes to consider the issue of punitive damages. I anticipate a large punitive award as well.

One of my favorites legal writers, Kenneth P. Nolan had a great Sidebar column in the April issue of the Litigation, the American Bar Association Section of Litigation Journal. The column offered some advice to judges on how to run a courtroom. The column should be read in its entirety[as all of Nolan's columns should]. With apologies to Mr. Nolan, I offer the highlights:

1. Be on time. Nothing more annoying that waiting, with 25 other equally annoyed lawyers for a judge to take the bench. We do have other places to be.

2. You're not God. As Nolan correctly points out, a good percentage of sitting state court judges are wearing robes because they share DNA with powerful policitical types and NOT because they were Law Review at Harvard. No one expects you to be Solomon. If you make a mistake, admit and move on. A judge who admits his or her mistakes makes quite an impression.

3. Don't be a bully. My personal favorite. I was in a courtroom last week where some old fart judge was rude, impatient and dismissive with virtually every lawyer who stepped up. Are lawyers annoying? Absolutely. But most of us are trying our best, sometimes under more pressure than we would like to admit. So how about you cut us some slack and ease up on the venom?

4 Lawyers have to make a living. And as Nolan points out, making a living these days is a little more complicated than it was when your honor practiced 30 years ago. Lots of plates spinning in the air at the same time. Keep that in mind the next time you hear a request for a brief continuance.

5. Be fair. Maybe you logged a couple of years working for an in-house insurance company defending personal injury claims before you ascended to the bench. There you were expected to think that every personal injury plaintiff is a lying weasel. Okay, but now you're a judge. Sure sometimes it is hard to push those feelings aside, but as Nolan notes "You can do it. You're that good".

In Behl v. Gingerich, the Fourth Appellate District of Illinois recently weighed in on what constitutes "substantial compliance" with the Illinois Home Repair and Remodeling Act["the Act"]. In the summer of 2006, defendant Gingerich approached John Behl[d/b/a Behl Construction] about doing some work at the Gingerich home. Defendant Gingerich was a plumbing contractor and had worked with Behl and had confidence in him. Gingerich wanted Behl to build a garage, do some remodeling inside the home and on an existing porch. Plaintiff submitted a bid. The cost was too high and the parties talked about cutting some expense. A second bid was resubmitted and defendant agreed to the terms. The job was scheduled to last 3 months. On several occasions, plaintiff accompanied the defendant to the bank for partial draws and execution of lien waivers. As luck would have it, the parties ultimately had a disagreements about monies owed and work left to be completed. Finally plaintiff concluded he was going to get stiffed and left the job.

In August, 2007, plaintiff filed suit. Ultimately, plaintiff filed a second amended complaint, alleging breach of contract[Count I], foreclosure of mechanic's lien[Count II] and promissory estoppel [Count III]. Defendant's answer alleged that plaintiff had failed to comply with the Act, by not securing a written, signed contract before beginning construction. The case went to trial and the Court awarded plaintiff $9594.93. Defendant appealed, insisting that the plaintiff had committed unlawful acts by failing to secure a signed contract and failing to provide defendant with a consumer rights brochure.

The Appellate Court noted for any repair or remodeling over $1000 the contractor is required to provided the customer with a written work order or contract and have the customer sign it. Additionally, the Act requires contractors to provided customers with a brochure detailing their rights. Behl did neither. The question for the Court was - did Behl substantially comply? The Court, after an exhaustive analysis of recent caselaw concluded Behl did substantially comply with the requirements. It was particularly important to the Court that both parties were in the construction trade and had negotiated extensively regarding the job. Absent those facts, Behl might not have prevailed. Most prudent course of action? Do exactly what the Act requires. Don't take any chances.