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By Steven R. Merican Here are some recent and noteworthy cases from the Illinois Supreme Court and various courts of appeal - August 2001. Sprietsma v. Mercury Marine, 2001 Ill. Lexis 1039, Docket No. 89492 (Sup. Ct. 8/16/01). Implied conflict preemption of a wrongful-death action by the Federal Boat Safety Act ("FBSA"). The decedent died from injuries sustained when she fell from a boat and was struck by the boat’s propeller blades. In the ensuing wrongful death action, the estate claimed that the manufacturer of the boat should have installed a propeller guard. But the U.S. Coast Guard, pursuant to authority under the FBSA, had held hearings about whether to require boats to have propeller guards, and for safety reasons concluded that there should be no regulatory action to require them. The court held that an implied conflict existed because: "The Coast Guard’s failure to promulgate a propeller guard requirement here equates to a ruling that no such regulation is appropriate pursuant to the policy of the FBSA . . . A damage award would, in effect, create a propeller guard requirement, thus frustrating the objectives of Congress in promulgating the FSBA." IRMO Mehring, 2001 Ill. App. Lexis 640, Docket No. 5-00-0057 (8/13/01). "Best interests" provision of the Illinois grandparental-visitation statute is not unconstitutional. Grandmother was awarded visitation over the objection of the child’s mother. The mother stood in contempt for failure to allow the visitation, and challenged the "best interests" aspect of the grandparental-visitation statute as being void for vagueness. The court cited to other statutes and case law that defines "the best interests of the child," and ruled that the mother’s "concern with that term’s supposed vagueness is considerably overstated." Neither Troxel v. Granville, 530 U.S. 57 (2000)(Washington’s grandparental-visitation statute unconstitutional), nor Lulay v. Lulay, 193 Ill. 2d 455 (2000)(Illinois grandparental-visitation statute unconstitutional as applied), are grounds for ruling that the "best interests" provision renders the statute unconstitutional. In re A.M., 2001 Ill. App. Lexis 668, Docket No. 2-00-1197 (8/16/01). Second District agrees that statute providing for an immediate appeal of a permanency order is unconstitutional. Mother appeals from an order changing the permanency goal for her child from "return home" to "substitute care." The appeal was taken pursuant to a provision of the Juvenile Court Act that allows for immediate appeals as of right. Agreeing with recent Fourth and Fifth District opinions, the court held that the statute "enabling an appeal of a permanency order is invalid because it constitutes an unconstitutional violation of the separation-of-powers clause of our state constitution." Hurst v. Capital Cities Media, Inc., 2001 Ill. App. Lexis 633, Docket No. 5-99-0194 (8/7/01). No false-light privacy action where the newspaper article did not identify plaintiff as a suspect in the crime or impute to him the commission of the crime, and accurately reported information from State’s Attorney. Plaintiff, a former chief of police of Belleville, was interviewed by police in connection with the investigation of a rape. He sued on a false-light invasion of privacy theory, complaining that a newspaper article stated that the rape victim had accused plaintiff of the crime, although the paper had knowledge that the victim’s statement was false or had serious reasons to doubt the truthfulness of the statement. In fact, a State’s Attorney had attributed the accusation to the victim, and that was the way the newspaper reported it. The court ruled that the report of information provided by the State’s Attorney was subject to the fair-reporting privilege, which could not be overcome in the "absence of any allegation and any proof that the article was an inaccurate report or an unfair abridgment of the public statements made by the State’s Attorney." Ferrara v. Wall, 2001 Ill. App. Lexis 595, Docket No. 2-00-1108 (7/20/01). Doctor’s failure to return test results was not a continuing course of negligent treatment and therefore did not toll the statute of limitations for medical malpractice. Plaintiff had a prostate specific antigen ("PSA") test in June 1993. The test showed an abnormally high PSA level, but the doctor did not inform plaintiff. Another test in October 1995 had similar results, and the doctor this time informed plaintiff about the results of both tests. Plaintiff was diagnosed with prostate cancer a month later. He sued for malpractice, and alleged that the doctor failed to timely inform of the results of the June 1993 test, and failed to provide appropriate medical care in response to the test results. The doctor moved to dismiss based on statute of limitations. Plaintiff raised the statute of repose, which allows an action to be filed within 4 years of the wrongful act. He argued that the failure to disclose the June 1993 test results constituted an ongoing course of negligent treatment and that the repose period did not begin to run until October 1995, when the earlier test result initially was disclosed to him. The court disagreed, and ruled that the repose period was triggered at the time the defendant received the abnormal test results and failed to communicate them to the plaintiff. 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 www.illinoislocalcounsel.com |
