DCBA - Recent Case Law

Recent Case Law

By Steven R. Merican

Here are a few recent cases of importance and note - April 2004.

Following are summaries of selected opinions recently issued by the Illinois Supreme Court:

Village of Lake Villa v. Stokovich, 2004 Ill. Lexis 356, Docket No. 95118 (2/20/04). Property demolition statute constitutional. More than 20 years ago, Dorothy Stokovich sold an old building in Lake Villa to her son, Nick. The Village did not like the way Nick maintained the building, so in 1998 the Village sought a demolition order from the circuit court. An order of demolition was entered. But the appellate court reversed after finding that the statutory authority for the demolition order, section 11-31-1 of the Illinois Municipal Code (allowing a municipality to demolish dangerous and unsafe buildings), did not give property owners due process. The supreme court reversed again, and ruled that the statute did not contain due process infirmities and was otherwise constitutional.

The court first ruled that the building owners did not have a fundamental right in their property. Because the case did not concern a fundamental right, the statute was assessed under the rational basis test – i.e., the statute is constitutional if it bears a rational relationship to a legitimate legislative purpose and is neither arbitrary nor discriminatory. "We agree with the Village that a property owner does not have a fundamental right to permit his property to fall into such disrepair as to create a risk to the health and safety of the public … [S]ection 11-31-1 was enacted pursuant to the state’s police power and is, therefore subject to review under a rational basis standard and, therefore the property owners have the burden of overcoming the presumption of constitutionality."

The court found a rational relationship between the statute and the public health and safety. "Without a doubt, the demolition of a structure that is dangerous and unsafe, when it has been demonstrated that the structure is not readily repairable, is rationally related to the legitimate state interest in public health and safety. In addition, the state has a legitimate interest in seeing such structures demolished sooner rather than later."

The Stokoviches also argued that section 11-31-1 was not reasonable because it allowed demolition to begin 15 days after the circuit court’s demolition order. However, the supreme court ruled that the "statutory framework chosen by the legislature is entirely reasonable and protects the rights of the property owner while permitting the municipality to deal expeditiously with threats to the public health and safety."

And finally, the Stokoviches "takings" argument also failed. "… [A]n exercise of police power to prevent a property owner from using his property so as to create a nuisance or a risk of harm to others is not a ‘taking’ in the constitutional sense."

Although section 11-31-1 survived the constitutional challenge, the supreme court remanded the case to determine if the building was "beyond reasonable repair." "Because the sale from mother to son was both remote in time and not an arm’s length transaction, we conclude that the court’s evidence of the value of the property was insufficient as a matter of law. Because City of Aurora requires that a finding that a building is beyond reasonable repair must be based on a comparison of value with cost of repair, the court’s finding that the building was beyond reasonable repair was not supported by the evidence."

H&M Commercial Driver Leasing, Inc. v. Fox Valley Containers, Inc., 2004 Ill. Lexis 355, Docket No. 96057 (2/20/04). Contract prohibiting one company from hiring the other’s employees is not against public policy. H&M is in the business of leasing truck drivers. The company contracted with Fox Valley to provide drivers. The contract stated that for one year after a driver stopped working for H&M, Fox Valley was prohibited from hiring the driver. It also called for liquidated damages of $15,000 for each such driver Fox Valley hired within that one-year period.

When Fox Valley hired a former H&M driver, James Booker, before his year had elapsed, H&M sued Fox Valley to collect the damages stated in the contract. Fox Valley moved to dismiss the complaint on the basis that the contract was unenforceable because "it adversely affected Booker’s right to free employment." Fox Valley pointed out that Booker did not have a contract with H&M and that Booker left H&M on his own accord. Booker stated that "his motivation for leaving H&M was the lack of regular work." Fox Valley argued that "paragraph 13 [of the contract] acts as a restrictive covenant to third parties without their consent and is thus unenforceable as a matter of public policy."

The supreme court ruled that the contract was not against public policy and was enforceable. The court stated that "paragraph 13 is neither a covenant not to compete nor a restrictive covenant between employer and employee." Rather, the court viewed the agreement as a "restraint of trade." The test for whether a restraint of trade is enforceable is: "whether enforcement will be injurious to the public or cause undue hardship to the promisor, and whether the restraint imposed is greater than is necessary to protect the promisee."

The court agreed that it was reasonable for H&M to contract for liquidated damages if its drivers were hired away. "If customers could hire H&M’s drivers on a permanent basis, then they would no longer need H&M’s services. We agree that this is a legitimate interest and that paragraph 13 affords fair protection to that interest." The court pointed out that the drivers were not prohibited from employment with Fox Valley, just that Fox Valley had to pay $15,000 if it decided to hire an H&M driver within the one-year period.

The court also ruled that the contract did not have an adverse effect on the public. "Nothing in the record suggests that the availability of truck drivers was diminished because the employees were precluded from working in the area." The court acknowledged that the contract would make former H&M drivers less desirable hires for Fax Valley. But the court was "reluctant to deem a contractual provision an unreasonable or excessive restraint of trade on the basis of mere speculation of harm."

Shannon v. Boise Cascade Corp., 2004 Ill. Lexis 353, Docket No. 95854 (2/5/04). Summary judgment for a manufacturer charged with a claim of deceptive advertising under the Consumer Fraud and Deceptive Business Practices Act is proper where plaintiffs did not see the subject advertisement and did not purchase based on the manufacturer’s advertisements. Plaintiffs bought their homes, which had Boise Cascade’s siding attached, in the early 1980s. In a class action complaint, plaintiffs alleged that the siding was defective in a variety of ways that resulted in general failure. They alleged that Boise’s advertising was deceptive, and that Boise falsely represented the siding to be durable, low maintenance, and of inherent good quality. Plaintiffs sued under the Consumer Fraud and Deceptive Business Practices Act.

However, discovery showed that none of the plaintiffs had seen the advertisements, or any other representations, from Boise before they bought their homes. The supreme court stated that summary judgment was proper because "deceptive advertising cannot be the proximate cause of damages under the Act unless it actually deceives the plaintiff." The court stated that this case fell under the "market theory" of recovery, which the court previously had rejected.

However, the court retreated from an absolute rule that "the deception must always be direct between the defendant and the plaintiff to satisfy the requirement of proximate cause under the Act." The court used the example of a home purchaser who relied on a professional, who in turn relied upon manufacturer representations to choose or specify a product. "In those circumstances, the purchaser, who may have no independent knowledge of the qualities or expected performance standards of siding, is deceived because of the deception of the builder, architect, or contractor, who reasonably should have had correct knowledge."

Sullivan v. Edward Hospital, 2004 Ill. Lexis 352, Docket No 95409 (2/5/04). A doctor is not competent to testify about the standard of care for a nurse. Sullivan Burns was getting treatment at Edward Hospital for a urinary tract infection. He had previously suffered a stroke, and was a high risk for falling down. After he tried to get out of bed, his nurse called the doctor to get authority to tie down Sullivan using a posey vest. Instead of the tie down, the doctor prescribed medication to calm Sullivan and help him to sleep. The pill worked for a while, but after it wore off, Sullivan climbed out of bed. He fell and sustained a subdural hematoma.

Sulllivan died some time later of unrelated causes. His estate sued Edward Hospital, the doctor, and the nurse for damages arising from the fall. The estate had one expert, Dr. William Barnhart. Among other things, Barnhart testified that Nurse Lewis failed to properly communicate Sullivan’s condition to the doctor, and that she should have gone up the nursing chain of command after she was directed by the doctor not to use the posey vest.

The trial court struck Barnhart’s testimony opining about the standard of care for the nursing profession. The supreme court agreed because "‘in order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein.’" The court concluded that nursing is a discrete school of medicine, and that Barnhart was not a licensed nurse.

The estate argued that Barnhart’s opinion was admissible because "there is nothing which a nurse can do which a doctor cannot do." The supreme court rejected this argument because it improperly "presumes a universal standard of treatment among physicians and nurses."

Steve Merican is a sole practitioner in Oak Brook, Illinois. Steve’s practice is concentrated in appeals in state and federal courts. His URL is http://www.illinoislocalcounsel.com.