Alleged Spoliation of Evidence




Plaintiffs, Terry Martin, Ardith Wynn, and Rickey Vanover were working on a bridge in Sparta Illinois.  While working on the bridge, a concrete I-beam used to support the bridge deck which they were on, collapsed, causing them to fall into the creek below and sustain injuries.  Keeley, defendant and employer to the plaintiffs, destroyed the I-beam the day after the accident after OSHA and IDOT had inspected the site.  The plaintiffs filed suit alleging that Keeley owed a duty to retain the I-beam as evidence and then breached that duty by destroying the I-beam.  The trial court ruled that Keeley was not obligated to preserve the beam while the Illinois Appellate Court reversed and ruled that they were obligated.

The case was then reviewed by the Illinois Supreme Court.  The general rule in Illinois is that there is no duty to preserve evidence but there is an exception.  The plaintiff must show that an agreement, contract, statute, special circumstance, or voluntary undertaking had given rise to a duty to preserve, and that a reasonable person would have foreseen that the evidence was material to a potential civil action.  Both parts of this exception must be proven to show a duty.  The court noted that Keeley did not show an intention to preserve the I-beam as evidence or acknowledge the significance of it as evidence in potential future litigation.  Keeley’s possession and control of the evidence, standing alone, was not sufficient to establish a duty to preserve.  Something more than possession and control are required, such as a request by the plaintiff to preserve the evidence and/or the defendant’s segregation of the evidence for the plaintiff’s benefit.

The Supreme Court found no evidence to support the existence of a duty to preserve the I-beam based on a voluntary undertaking by Keeley or other special circumstances.  If the plaintiff cannot prove the first part of the two part test, then the claim cannot stand.  Therefore, the court reversed the Appellate Court decision. 


Vehicle Owner's Policy is Primary

S&S Service Company performed maintenance and repair service on a fleet of Coca-Cola trucks.  Typically the service occurred at Coca-Cola’s bottling plant but sometimes S&S needed to take the trucks to its own shop for repairs.  Daniel Zacha, an employee of S&S, caused a fatal accident when he negligently made a left turn.  Coca-Cola’s truck was insured by ACE American Insurance.  S&S and Zacha were insured by Universal Underwriters Insurance.  The decedent’s estate sent an initial settlement demand letter to Universal and Universal tendered the claim to Coca-Cola and ACE but they declined the tender.  Universal agreed to take the lead on the settlement and settled for $1.9 million.  Coca-Cola and ACE filed suit against S&S and Zacha seeking judgment regarding the parties’ obligations.  The defendants counterclaimed for reimbursement and moved for summary judgment. The district court granted the motion, which Coca-Cola then appealed.

            The issue on appeal before the 7th Circuit was whether Coca-Cola’s insurance or S&S’s insurance was responsible for the amount paid.  The Appellate Court noted that both insurance policies provided coverage but that Coca-Cola and its insurer were responsible for the settlement amount.  Under Illinois law, the vehicle owner’s policy is primary over the vehicle operator’s policy unless a statute provides otherwise.  Coca-Cola argued that the Illinois tow-truck statute applied.  The Court held that the accident did not involve a tow-truck or any other S&S vehicle, therefore, the statute did not apply.  Zacha’s use of the truck was permissive, so Illinois law mandated coverage under the ACE policy.  The Appellate Court affirmed the district court’s ruling holding Coca-Cola’s insurance responsible for the settlement amount.

Proximate Cause in Auto Accident


 Dennis Hernandez was a truck driver for MTV Networks and caused an accident which closed the northbound lanes of Interstate 57 for several hours and created a traffic jam that went back for approximately five miles from the accident site.  David and Paul Blood approached the traffic jam and came to a stop at the end of the jam.  A few minutes later, Milinko Cukovic who was driving a truck for T.E.A.M. Logistics Systems, Inc., crashed into the Blood’s vehicle, killing Paul and seriously injuring David. Blood filed suit against Cukovic who third partied in Hernandez.  David Blood settled with Cukovic and T.E.A.M. Logistics in August 2010, and during the same month the trial court granted Hernandez's motion for summary judgment.  

The issue before the Appellate Court was whether Hernandez was the proximate cause of the injuries sustained by the Bloods.  The Court reasoned that Cukovic’s negligence, as contrasted to the other cars that properly stopped short of the Hernandez accident, clearly broke the causal link between Hernandez and Blood.  The Court further noted that legal responsibility must be limited to those causes which are closely connected with the result and of such significance that imposing liability on the defendant would be just.  The Cukovic/Blood accident occurred four and a half miles away and many hours after the Hernandez accident occurred.  Therefore, the 7th Circuit Appellate Court affirmed the decision of the district court in ruling that Hernandez was not the proximate cause the Cukovic/Blood accident. Blood v. VH-1 Music First, 668 F.3d 543, 548 (7th Cir. 2012).


Responding to Questions on Referrals

Clients hire Hennessy and Roach for two reasons.  First, we are good at what we do.  I say that because we have a real track record of success that we can point to, our fees are reasonable and we really focus on customer service in terms of working with adjusters and clients, communicating updates and  being aggressive.  Second, we are experienced and knowledgeable in the practice areas we handle.  

Various people regularly come to me with legal questions for areas of law that we don’t handle.  I view this as part of the service that we offer.  If I can answer a question I’m happy to do so.  Often, clients want to know if there is a lawyer we can recommend for a case they are involved with.  This just happened the other day from a client who needed to collect a debt.

In the past I may have simply given a name of a guy I went to school with when these requests came in.  However I’ve learned that this is not always the best route to take. Now when clients need a recommendation and I don’t have anyone in that particular field, I typically suggest they go to  It’s a 12 year old service run by a Chicago lawyer and he basically helps people find the right attorney in Illinois for whatever situation they are dealing with.  I’ve seen how he handles his referrals, and he takes care to only recommend respected, experienced attorneys.  Basically he looks for lawyers like we have at our firm, but for other areas of law. Please feel free to check out his website or contact me if you have any other questions.



Children and Premises Liability

On July 30, 2003, the plaintiff, 12 year old Dominic Choate, was injured when he attempted to jump onto a slow moving freight train. As a result, his leg was amputated below the knee. He filed suit against the Indiana Harbor Belt Railroad Company and a jury awarded him $3.9 Million. The Appellate Court affirmed judgment of the Circuit Court. The question presented to the Supreme Court was whether the railroad defendants had a duty to protect the minor. 

There are conflicting opinions from the Appellate Court on this issue. However the Supreme Court concluded that as a matter of law the defendants owed no duty to protect the plaintiff from the obvious danger of trying to climb on a moving train. While the Court explained that there are certainly latent dangers that children would not appreciate due to their minority, a landowner is "free to rely on the assumption that any child old enough to be allowed at large by his parents will appreciate certain obvious dangers or at least make his own intelligent and responsible choice concerning them." The court recognized that as a matter of law that a moving train is an obvious danger that any child allowed at large should realize the risk of coming within the area made dangerous by it. The judgment was reversed.   

Borrowed Employee of U.S. Postal Service

Billy Couch -a truck driver employed by B&B Trucking, a U.S. Postal Service Contractor, was injured when a U.S. postal worker ran over his foot with a forklift. Two years later Coach died from lingering complications. B&B's workers' compensation coverage covered the medical expenses. However, his wife brought an action against the U.S. under the Federal Tort Claims Act. The United States moved for summary judgment under the theory that Couch was borrowed employee and thus workers' compensation would provide his only remedy against both employers. The District Court agreed and granted the motion. Plaintiff appealed.

The 7th U.S. Circuit Court of Appeals applied both the "right to control" test and an alternative based on the Illinois Workers' Compensation Act's statutory definition of "loaning employer" when arriving at their answer. The Court determined that B&B did not "furnish" its employess to anyone else and their employees were not "doing the work of other employers." They managed their own operations, deployed their own equipment, and trained, coordinated and supervised their own employees in performing the service for the Postal Service. As such, B&B did not meet the statutory definition of a loaning employer and Mr. Couch was not a borrowed employee of the Postal Service when he was injured. The previous judgment was reversed and the case was remanded.

Foreseeability Issues -Products Liability


Geronimo Perez, plaintiff, appealed from a Du Page County Circuit Court grant of summary judgment to defendant JLG Industries, in his suit against the manufacturer of a scissor lift which he fell from for strict-liability and negligence theories. Perez, while working as a painter on a construction site fell off a scissor lift and sustained serious injuries. The guard gate had been removed prior to Perez using it. The gate was attached with a nut and bolt and two locking pins. Perez argued that the trial court erred because a genuine issue of material fact existed regarding whether the removal of the guard gate was reasonably foreseeable. To recover against a manufacturer under strict liability, a plaintiff must prove that his injury resulted from an unreasonably dangerous condition of the product and that the condition existed at the time the product left the manufacturer’s control. Perez v. Sunbelt Rentals, Inc. 968 N.E.2d 1082, 1084, 360 Ill.Dec. 329, 331 (Ill.App. 2 Dist.,2012).

JLG argued that a wrench and screwdriver would be required to remove the nut and bolt and that someone would have to pull the locking pins out of position and actually pull the gate out of its channel. As such, this alteration, requiring the use of tools, was unforeseeable as a matter of law. The Appellate Court ruled that whether tools were needed to remove the guard gate does not necessarily answer the question of whether, as a matter of law, the removal of the guard gate was foreseeable. The Court reasoned that there was no evidence that special expertise was needed to make the modification or that the modification was especially complex or time consuming,  so a genuine issue of material fact existed as to the foreseeability of the modification, and the question was best presented to a jury.

The Appellate Court reversed the judgment of the trial court and remanded the matter.

Distraction as an Exception to Open and Obvious

Norma Waters, plaintiff, appealed from a Cook County Circuit Court grant of summary judgment to defendant, City of Chicago, in her personal injury suit that charged the city with negligence in maintaining a street barricade over a sidewalk. Waters tripped over the metal base of street barricade, which was sticking out in the crosswalk.  After passing two of the barricades, she approached the third but was startled by a sudden jackhammer noise from a nearby construction site. The circuit court ruled that the condition of the barricades was open and obvious and that the distraction exception did not apply to impose a duty of care on the City. Waters appealed.

The distraction exception to open and obvious conditions involves a situation where a possessor of land should anticipate the harm because it has reason to expect that the invitee’s attention may be distracted as to not discover the condition even if the condition is obvious or will forget about the already discovered condition.

The appellate court found that the barricades and their bases were not concealed or hidden in any way and were obvious. Waters v. City of Chicago, 2012 IL App (1st) 100759. However, the court found that despite the obviousness, Waters became distracted upon hearing the jackhammer. The Defendant created a hazard not a distraction. It was reasonable to expect a defendant, who places portions of the jutted barricade bases into areas of ingress and egress, to foresee the possibility of injury and reasonable to foresee people walking through the partially barricaded sidewalk. Therefore, the court could not say as a matter of law that the defendant should not have anticipated the distraction. The court felt that it would have been easy  for the defendant to barricade the entire walkway.  Here, the jackhammer’s noise caused plaintiff to trip and this type of distraction was reasonably foreseeable at a construction site. 

The dissent disagreed with the majority opinion stating, “it would appear to require the City to take every case to judgment where the plaintiff in essence claims that a big city life noise…triggers the distraction exception to an open and obvious danger.”

Proper Notice for the Common Fund


Al Wajnberg and Dayna L. Wunglueck were involved in a car accident in 2007.  Wajnberg's insurer, Erie Insurance, paid $10,000 toward Wajnberg's medical expenses.  Erie then filed a subrogation claim against Wunglueck’s insurer, Farmers, seeking recovery of the $10,000 through arbitration reimbursement.   Erie sent Farmers a letter stating “[p]lease protect the interest of Erie insurance at the time of settlement with our insured.” 

During the subrogation claim, Wajnberg filed a personal injury claim against Wunglueck.  Wajnberg and Wunglueck ultimately settled their lawsuit for $40,000, which included Erie’s medical payment subrogation claim. Wajnberg and his attorney first became aware of Erie's lien during settlement negotiations after Famer’s provided a copy of Erie’s letter. After the settlement, Wajnberg filed a motion to adjudicate Erie's lien. The court ultimately reduced the $10,000 lien by one-third, pursuant to the “common fund doctrine.”  Erie appealed.

The appellate court affirmed. Wajnberg v. Wunglueck. 2011 IL App (2d) 110190 (Dec. 2011). The court explained that the prevailing party (in the personal injury case) bears the cost of attorney’s fees.  One exception to this rule is the equitable “common fund doctrine,” which protects attorneys who deal with nonparticipating insurance companies (Erie).  If an attorney performs legal services and a nonparticipating subrogee (Erie) benefits, a fund is created.  If Erie benefits then Erie should absorb its share of attorney's expenses (from the personal injury case).

The “common fund doctrine” does not apply if an insurer “promptly and unequivocally” advises the plaintiffs and /or their attorneys of its intention to pursue its own subrogation claim and disclaims any intention to employ the plaintiff’s attorney. This is called a Tenney letter. Tenney v. American Family Mut. Ins. Co., 128 Ill. App. 3d 121 (1984). Erie’s letter to Farmers may be reasonably interpreted as Erie’s desire to assert a lien for medical payments. Further, after Erie found out about the personal injury case, Erie could have sent a Tenney letter to Wajnberg or his attorney. Because Erie did not participate in the personal injury case or the fund, never sent a Tenney letter to Wajnberg or his attorney, and ultimately benefited from the settlement, the common fund doctrine applied and Erie’s lien was reduced. 


Forum Non Conveniens and Turkey Plane Crash

In 2007, an Atlasjet Airlines plane crashed into a mountain located in Turkey.  Relatives of 32 victims filed a products liability suit in Cook county Circuit Court against the airplane’s manufactures, Boeing, McDonnell Douglas Corporation, and Honeywell International Incorporated. 30 of the 32 victims were Turkish residents. Defendants filed a motion to dismiss on grounds of forum non conveniens. They argued that Turkey would be more convenient or even Washington state where Honeywell is located.  The circuit court held that private and public interest factors did not  favor dismissal and two of the defendants were headquartered in Chicago. The evidence and witnesses were also scattered through the US. The crash site was less important because jurors do not need to see the site to resolve a products liability claim. The court also pointed out that the Turkish court may decline jurisdiction over the defendants, Turkish law does not provide for pre-trial discovery, and the Turkish law requires a claimant pay a court fee of 5.4% of the amount of the substantive claim.  The defendants appealed.

The 1st District Appellate Court agreed and affirmed. Yavuz Arik, etc. v. The Boeing Co., et al., 2011 IL App (1st) 100750-U. The court stated that all of the evidence related to design, manufacture and assembly of the aircraft and its warning system is in the U.S.  Product liability actions are not localized actions,  rather they have international implications. Americans just as Turks have an interest in the safety of Boeing airplanes.   Furthermore, investigation of the crash took place in the United States and Germany but not Turkey. As the evidence is scattered throughout different states and countries, no one forum is more convenient then the other.