Illinois Lawyer Blog

Interesting decision, Johhnson v. Bishop, just came out of the Third Appellate District Court speaking to the issue of the duty owed by vehicle owners when ne'er-do-wells steal their cars.

First, a brief rundown of the players. Robert Sonnemaker and David McLeod were roommates. Sonnemaker owned a Ford Taurus. Although not entirely clear, it appears that both Sonnemaker and McLeod had keys to the Taurus. One of the roommates allowed a Thomas Bishop to crash at their apartment. Mr. Bishop, it appears, was both homeless and a fan of crack cocaine. McLeod had previously allowed Bishop to use the car on several occasions. On the evening of December 3, 2005, the Ford Taurus was parked near the apartment. McLeod retired for the evening and although not entirely clear, it appears Sonnemaker did as well. When they retired, Bishop was still present in the apartment. You can probably guess where this is headed...

Bishop somehow gets the keys to the Taurus and decides to take it for a ride. Unfortunately, part of that ride included a collision with a vehicle driven by Todd Johnson. Johnson sued Bishop, Sonnemaker and McLeod. Johnson alleged that Sonnemaker and McLeod failed to prevent Bishop from getting the car keys and, thereby ultimately caused the collision. Sonnemaker and McLeod moved to dismiss those counts and the trial court did so.

On appeal, the Appellate Court noted that generally, Illinois Courts have held that no duty exists to a third party injured by a defendant's stolen vehicle without showing special circumstances making the theft foreseeable. The Court went on to note that in order to state a claim the plaintiff had to show 1) the defendants committed some act which made the keys accessible to the person who stole the car and 2) that it was foreseeable that the car would be stolen. The Court found that the plaintiff failed to show how either Sonnemaker or McLeod had done anything to make the keys more accessible to Bishop. Furthermore, the Court found that there were no facts to suggest theft of the car was foreseeable. The trial court's ruling was affirmed.

A Chicago man will receive a $2.7 million settlement from the City of Chicago after being wrongfullly imprisoned for 27 years. In 1977, Paul Terry and Michael Evans[then both only 17] were prosecuted for the abduction, rape and murder of 9 year old child. They were both released in 2003 after DNA testing showed that the rape had been committed by someone else. They were then pardoned by former Governor Rod Blagojevich.

Evans sued the City and elected to go to trial with his case. The jury rejected his request for $60 million dollars.

The City of Chicago Finance Committee recently signed off on the $2.7 million dollar payout to Terry[pictured below] whose mental capacity had diminished while he was in prison. The only piece of evidence linking Terry to the crime was an identification by a female witness. Lawyers for Terry claimed that Area 2 detectives manipulated the witness and other evidence to secure the convictions.

Corporation Counsel Mara Georges admitted that the witness didn't identify Terry until 10 months after the crime. In addition, Georges acknowledged that "...her mental capacity is declining a bit as she advances in age, so were weren't sure what kind of witness she would make."

Wow, late winter cold kicked my ass. But thankfully on the mend...

The current American Bar Association Journal has a great article entitled "Lions of the Trial Bar" which features interviews with some of the elder statesmen of the American Courtroom. One of the lawyers featured, Richard Racehorse Haynes, is legendary for persuading Texas juries to absolve his clients of various heinous acts, including but not limited to murder. Haynes discussed how, back in the 1970's, he used to have his client thank the judge and jury after the acquittal. One client apparently stood, looked at the jury and said:

"Ladies and gentlemen, I want to thank each and every one of you. And I promise, I will never, ever, do it again"

A few short weeks later, after yet another acquittal, Haynes' client was about to launch into another heartfelt thank you, but didn't get too far. According to the story, the trial judge interrupted.

"Don't thank me, you little turd," the judge said. "You an I both know you're guilty".

Haynes no longer has his client give thanks after an acquittal.

On Wednesday, the United States Supreme Court upheld a multi-million dollar Vermont verdict, and in doing so preserved an important right for consumers - the right to sue drug manufacturers for injuries caused by defective drugs. The case that started it all began in Vermont in the year 2000, when Diana Levine[shown below] went to a clinic near her home complaining of a severe headache. She was given Demerol and an injection of Phenergan. The drug is usually given orally or through an IV drip. What Ms. Levine did not know was that there could be devastating side effects if the drug reached an artery. The maker of the drug, Wyeth, was however, fully aware of that fact. At least 20 other person had lost limbs as a result of the being given the drug prior to Levine.

Shortly after being given the injection[which apparently reached an artery]gangrene developed and Ms. Levine lost her right hand. Then she lost part of her right arm. She sued and settled against the clinic. She then brought suit against Wyeth for failing to warn consumers of the dangers presented by the drug. A Vermont jury agreed, and awarded her $6.7 million dollars.

Wyeth appealed, arguing that it had disclosed the risks to the Food and Drug Administration[FDA]which went ahead and approved the warning label. Wyeth argued that the FDA approval preempted the right of Ms. Levine to sue. Wyeth's preemption argument was made possible by the recently departed Bush administration. Three years ago Bush and his co-horts reversed a long-standing FDA policy by announcing that FDA approval of a drug barred any suit against the manufacturer.

The Supreme Court however, shot the Bush preemption doctrine down. The opinion noted that Congress had regulated drugs for many years and had never barred consumers from suing drug manufacturers. In addition, the Court also noted that lawsuits like those filed by Ms. Levine exposed dangerous drugs - thereby making the market safer.

Every consumer should thank Ms. Levine for staying the course these nine long years. If the case had gone the other way, tens of thousands of consumers pursuing cases in the courts for injuries suffered because of defective drugs would have been out of luck.

Settled a case the other day where my client was injured after falling on what appeared to be ice and snow near the entrance to a restuarant. If the injury had solely been caused by the presence of ice and snow, the client may have been out of luck. The fact that the owner had admitted allowed water and ice to accumulate near the only entrance door allowed me to pursue another theory of recovery.

In Illinois, a property owner has a general duty to provide a reasonable means of entry to and from their business. At the same time, a property owner has no duty to remove natural accumulations of snow and ice fom his property. The presence of ice and snow however, doesn't completely immunize a property owner. The owner still has a duty to give adequate warning of a known and dangerous condition. In my case the owner admitted that he was aware that due to the slope of the roof, moisture would descend onto the sidewalk area near the front door[the only door the public was allowed to use]. Nonetheless, he had taken no steps to warn customers of moisture near the door. As a result I could argue he was in violation of his duty to provide safe entry to his building. The defense lawyer recognized that fact and the case resolved shortly before we were to start picking a jury.

That being said, premises cases are becoming increasingly difficult to litigate in Cook County and the surrounding counties. As noted above if a person is injured due to a natural accumulation of snow/ice, he is out of luck. Even if you can prove the accumulation was not natural, the jury instructions are not plaintiff-friendly. And juries seem increasingly skeptical when it comes to these types of cases. Consequently, I advise my clients early on that at some point, if a reasonable settlement offer is conveyed, I will be telling them to take it

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