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“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

McKenna Law Update & News – June 2014

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  • WRONGFUL DEATH AND SURVIVAL ACTIONS CAN BE BROUGHT FOR INTENTIONAL ACTIONS LEADING TO SUICIDE
  • PLAINTIFF FAILED TO PLEAD PROPER COMPLAINT AGAINST CONDO ASSOCIATION FOR DOG BITE CLAIM
  • DEFENDING DOG BITE CASES
  • McKENNA NEWS
  • WELCOME
  • CONGRATULATIONS
 

WRONGFUL DEATH AND SURVIVAL ACTIONS CAN BE BROUGHT FOR INTENTIONAL ACTIONS LEADING TO SUICIDE

Illinois Courts have previously held that plaintiffs cannot maintain either a wrongful death or survival action against a defendant where the decedent’s death was the result of a suicide. The reasoning was that the suicide was an "independent intervening event that the tortfeasor cannot be expected to foresee". However, the Second District has ruled in Turcios v. The DeBruler Company, 2014 IL App (2d) 13-331, that such an action can be maintained where the basis of the claim is an intentional act by the defendant. In Turcios, Maria and Nelsyn Turcios signed an apartment lease for the period of May 1, 2011 to April 30, 2012. They paid the security deposit and the first month’s rent and moved their family into the apartment. On May 10, 2011, the defendant sent a notice that they were being evicted and had 30 days to move. The defendant’s agent made numerous phone calls to them pressuring them to move. On May 20 the defendant sent a letter stating the building would be demolished beginning on June 10, 2011. On May 31 they received a notice that the last day they could be in their apartment was June 9, 2011. On June 1, 2011, they attempted to pay June’s rent but defendant would not accept it. On June 10, 2011, defendant told them to move ASAP. After June 10 the defendant began demolishing the building around the unit where the plaintiffs were living. A case manager from Catholic Charities who had been meeting with them during this period noted they were fatigued, depressed, anxious and angry. On June 14 Nelsyn said he could not tolerate the situation any longer and on June 15 he committed suicide in the apartment. The trial court granted the defendant’s 2-615 motion to dismiss the complaint, but the Appellate Court reversed. It acknowledged that no Illinois court had passed directly on this question, but it reviewed federal and other state laws and found that a defendant who intentionally causes injury to someone should not be able to escape liability for its actions. The Court framed its ruling as a narrow one. It held that where a plaintiff can satisfy the elements of the tort of intentional infliction of emotional distress and the emotional distress is a substantial factor in causing a decedent’s suicide, such causes of action are cognizable in this state. The Court did not rule on whether the plaintiffs in this case had sufficiently pled their complaint, only that as a matter of law they were allowed to bring such an action. There will likely be further appeals relating to this claim and we will follow it for further developments. For further information, contact Dawn Ehrenberg at 312.558.3933 or dehrenberg@104.236.6.34. Return to Issues Menu  

PLAINTIFF FAILED TO PLEAD PROPER COMPLAINT AGAINST CONDO ASSOCIATION FOR DOG BITE CLAIM

In Tyrka v. Glenview Ridge Condominium Association, 2014 IL App (1st) 132762, the Plaintiffs brought a complaint against the condo association and others for an attack by a dog belonging to one of the condo owners. The Court noted that the Plaintiffs stated they were not bringing the action pursuant to the Illinois Animal Control Act. The Court discussed how the pleading requirements would have been different if the Plaintiffs had sued under the Act. Since they did not, they would be required to plead the necessary elements under a common law negligence claim including (1) a duty owed by the defendant, (2) a breach of that duty and (3) an injury proximately caused by that breach. The Plaintiffs claimed that the condo association owed them a duty because it owned the premises upon which they were injured. They did not explain where they were on the premises or what their status was in being on the premises. The Court distinguished the cases cited by the Plaintiff where a business owner was liable for a dog attack occurring on its premises. The Court stated that those cases only showed that a business owner may be liable for an attack, not that it is liable. The Court further noted that to impose liability on someone other than the dog’s owner under common law negligence, the plaintiffs must show that a defendant premises owner had prior knowledge of the dog’s viciousness. Here, the Plaintiffs had not alleged any factual allegations to show that the dog had committed any prior unprovoked attacks on people or had snarled, growled at or threatened anyone. Thus, the Plaintiffs had not properly alleged sufficient facts to show notice of the dog’s vicious propensities. Since the Plaintiffs had not asked for leave to file an amended complaint, the counts against the condo association were dismissed. Later, the Illinois Supreme Court rejected a claim for extraordinary damages where a child diagnosed with ADHD was born following a negligently performed tubal ligation procedure when the doctor was aware the plaintiffs were parents to another child who was hyperactive and learning disabled. The Court found the allegations in plaintiffs’ complaint were insufficient to establish their medical provider proximately caused the injury because the plaintiffs’ injury could not be said to be of such a character that an ordinary prudent person should have foreseen it as a likely consequence of the alleged negligence. There were no allegations that the defendants’ acts or omissions caused the child’s condition, the defendants knew of the possibility that a child would suffer from a particular defect or the parents were seeking to avoid a specific risk. Williams v. University of Chicago Hospitals, 179 Ill.2d 80, 84, 688 N.E.2d 130 (1997). The First District found that the 1997 Williams decision did not create a per se ban on extraordinary damages available to wrongful pregnancy plaintiffs and that in this case, the plaintiffs had alleged the requisite link between Dr. Rosner’s negligence and the child’s condition. Specifically, the plaintiffs alleged they communicated to Dr. Rosner they had a special need to avoid conception of additional children as both parents were carriers of the sickle cell trait and were parents of a child born with sickle cell disease. Based on these allegations, the Court stated that one can conclude plaintiffs’ injury, the birth of a second child afflicted with sickle cell disease, was of such a character that an ordinarily prudent person should have foreseen it to be a likely consequence of a negligently performed tubal ligation procedure. Although Dr. Rosner did not actually cause the sickle cell disease, one can conclude that the birth and affliction was not only foreseeable but it would not have occurred "but for" the negligently performed tubal ligation procedure. For further information, contact Dawn Ehrenberg at 312.558.3933 or dehrenberg@104.236.6.34. Return to Issues Menu  

DEFENDING DOG BITE CASES

Illinois is second in the nation for the most dog bite cases filed every year. According to one major insurance company, more than 300 dog bite cases were filed in Illinois in 2013 and this year’s filings seem to be keeping up with the trend. Illinois’ Animal Control Act statute may be one of the reasons for the higher than average cases filed. Section 16 of the Animal Control Act provides:
If a dog or other animal, without provocation, attacks, attempts to attack, or injures any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby. 510 ILCS 5/16.
As applied to dogs, the Illinois courts have interpreted the statute as having four elements: (1) injury caused by a dog owned or harbored by the defendant; (2) lack of provocation; (3) peaceable conduct of the person injured; and (4) the presence of the person injured in a place where he has a legal right to be. The animal owner’s liability also extends beyond animal bites. The Act is broad enough to include liability for injuries caused by an animal jumping upon, knocking down, tripping, or frightening a person. The Animal Control Act is sometimes referred to as a strict liability statute because it does not require that the dog owner have prior notice of any propensity to bite or attack. Thus, the dog owner is liable for any injuries caused by its dog even if it is the first time the animal has bitten or attacked another. Nevertheless, there are defenses available to a homeowner. There are three primary defenses that can be raised in a dog bite case. The first, and most common, defense is that the dog was provoked. The injured person is required to prove that they were peacefully conducting themselves when they were attacked. The fact that the victim of the dog bite was a child is of no significance to liability; a child is not allowed to antagonize or provoke a dog and still claim injury. The second defense is that the person was trespassing. There is no recovery for an individual injured while trespassing on real property. This differs from general tort law where the law imposes certain duties owed to anyone upon the property, regarding their legal status on the property. The third defense is that that dog was no longer in the control and custody of the owner. This third defense arises when the dog is being controlled by a dog walker, a veterinarian, an airline or a dog boarder and the dog escapes or harms its handler. While most dog bite cases have relatively small damage potential, they are no laughing matter. According to one insurer, last year Illinois insurance companies paid approximately $10,000,000 in settlements. Depending on the severity of the injuries, these cases can be both costly to defend and settle. For further information contact Kristin Tauras at 312.558.3923 or Ktauras@104.236.6.34. Return to Issues Menu  

McKENNA NEWS

The Illinois Association of Defense Trial Counsel, Illinois’ premiere defense attorney organization, is celebrating its 50th Anniversary this year. One of McKenna’s founding partners, Royce G. Rowe, was a founder of the IDC and its first President. Two other McKenna partners, John White and Greg Cochran, have also served as President and Directors of the organization. Another partner, Margaret Foster, has served as a Director while a number of McKenna attorneys have been members and chairs of various IDC committees. McKenna Storer is one of the sponsors for the cocktail reception as the IDC celebrates its 50th year.

WELCOME!!

We are happy to announce that Alison Harkins has joined our firm. Before joining the firm, Alison was in-house corporate counsel for several major corporations including 3Com, MCI, Accenture, Savvis and Information Resources. Alison has over 15 years’ experience handling a wide variety of business transactions including non-disclosure agreements, distribution arrangements, consulting and professional service contracts, telecommunications, technology, data, cloud computing and software licensing agreements. Alison also has experience setting up business corporations and LLCs. Alison has subject matter experience in privacy and data security matters and has created several corporate privacy and data security policies. Alison received her law degree from The University of Arizona College of Law, Tucson, Arizona, and her undergraduate degree in finance from Arizona State University in Tempe, Arizona.

CONGRATULATIONS!!

Julie Ramson relaxes by writing murder mysteries and novels. Her success as an author was recently celebrated by her hometown where she was inducted into the Menomonee Falls High School Wall of Fame for Fine Arts. Patrick Gannon, our Office Services Coordinator, has won Chicago’s Joseph Jefferson Award as the outstanding actor in a principal role for his work in the Hypocrites Production of The Tennessee Williams Project. Patrick played a different character in each of the three one-act plays which made up the production. The Award acknowledges excellence in Chicago Theater and there is no greater honor for a Chicago actor. Return to Issues Menu
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