DCBA - Recent Case Law

Recent Case Law

By Steven R. Merican

Here are a few recent cases of importance and note - September 2002.

Sollami v. Eaton, 2002 Ill. Lexis 331, Docket Nos. 91284, 91378 (6/6/02). Risks of "rocket jumping" are open and obvious, so trampoline manufacturer has no duty to warn 15 year old. Owner of trampoline also had no duty to warn or to supervise teenagers who were using the trampoline inappropriately. A 15 year old girl and her friends were "rocket jumping" on a neighbor’s trampoline. "Rocket jumping" is when a number of people jump at the same time in order to propel one of the jumpers even higher. The girl, who was the rocket in this particular jump, hurt her knee when she landed on the trampoline mat. She sued the manufacturer of the trampoline on a products liability/failure to warn theory, and the owner/neighbor for failure to warn and supervise. The circuit court granted both defendants summary judgment, but the appellate court reversed. The supreme court reversed the appellate court.

The manufacturer defended the failure to warn claim with the theory that the danger was open and obvious. Plaintiff urged the supreme court to abandon the open and obvious defense because, plaintiff asserted, it had been erratically applied. The supreme court reviewed how the rule had been applied in similar cases and declined "to depart from this rule." Ruling that the danger of inappropriate use of the trampoline was open and obvious, the court concluded that "a reasonable 15-year-old teenager would appreciate the danger of rocket-jumping on a recreational trampoline."

The court also ruled that the owner/neighbor did not owe a duty to guard against the harm encountered by plaintiff. Because the risk was open and obvious, the foreseeability of injury carried little weight. The court stated: "The mere fact that Eaton [neighbor] may be aware that teenagers such as Kathleen use his trampoline and may injure themselves while performing inappropriate maneuvers, such as rocket jumping, does not translate into a legal duty to provide warning or supervision or to prevent use of the trampoline altogether."

Robidoux v. Oliphant, 2002 Ill. Lexis 338 (6/20/02). Plaintiff’s expert affidavit stricken because it did not attach sworn or certified copies of the records upon which the doctor relied. Court rules on the scope of Rule 191. Defendant moved for summary judgment in this medical malpractice case. Plaintiff’s response included an affidavit from a doctor who opined that the defendant did not meet the standard of care. The circuit court struck the affidavit and entered summary judgment for defendant. In this opinion, the supreme court determined the scope of the requirements of an affidavit under Supreme Court Rule 191.

Rule 191 states that an affidavit "shall set forth with particularity the facts upon which the claim, counterclaim or defense is based." Plaintiff argued that this requirement should be relaxed for expert affidavits because, even at trial, experts are not required to state the facts upon which they rely to form an opinion. The court rejected that argument and distinguished the trial setting, where the expert can be cross examined, and the summary judgment stage, where an expert’s affidavit often is unchallenged. "The purpose of summary judgment is not to try a question of fact, but to determine if one exists . . . Therefore, it is necessary that there be strict compliance with Rule 191(a) ‘to insure that trial judges are presented with valid evidentiary facts upon which to base a decision.’"

The court also reviewed the requirement that the affidavit attach sworn or certified copies of records upon which the affiant relied. Plaintiff argued that this requirement was merely technical. But the court disagreed. ". . . [T]his requirement is inextricably linked to the provisions requiring specific factual support in the affidavit itself . . . We are unwilling to allow the simple production of an expert’s conclusion ‘to become a free pass to trial.’" In this case, striking plaintiff’s expert affidavit was upheld because of the failure to attach the pertinent records. Plaintiff thus had no expert affidavit, and summary judgment was affirmed.

Oliveira v. Amoco Oil Co., 2002 Ill. Lexis 342, Docket Nos. 89497, 89511 (6/20/02). Marketing theory does not satisfy the causation element under the Consumer Fraud and Deceptive Business Practices Act. Plaintiff must allege that he was deceived by defendant. Plaintiff ‘s class action complaint alleged that Amoco violated the Illinois Consumer Fraud and Deceptive Business Practices Act by airing deceptive advertisements touting its premium gasoline. Plaintiff alleged that the advertisements created an artificially inflated price for the gasoline, and that he was among the purchasers of the gasoline. Plaintiff did not allege that the advertisements induced him to buy the gas, or even that he heard or saw any of the ads.

The court ruled that plaintiff’s "marketing theory" did not satisfy the causation element of the Consumer Fraud Act. The court ruled that a plaintiff must plead "that he was, in some manner, deceived." In this case, plaintiff never saw the ads that caused the alleged price inflation, so he could not allege that the ads deceived him. "Plaintiff does not allege that he received anything other than what he expected to receive when he purchased defendant’s gasoline, i.e., a certain amount of gasoline, with a certain octane level, for the price listed on the pump."

Sarkisssian v. Chicago Board of Education, 2002 Lexis 345, Docket No. 88530 (7/3/02). (1) Motion to vacate a default judgment was, in substance a 2-1401 post-judgment motion, and therefore the order was final and appealable. (2) Board had authority to delegate receipt of summons, so service upon Board’s secretary established personal jurisdiction. This is another case in which this recently constituted court reversed a ruling of the prior court on a petition for rehearing. Plantiff minor sued the Board of Education when she suffered injuries from an epileptic seizure while at school. Plaintiff claimed there was a failure to render appropriate medical assistance. Plaintiff served the Board by leaving summons and complaint with the Board’s secretary. The summons admittedly "fell through the cracks." On a prove-up after a default judgment was entered, plaintiff was awarded in excess of $10 million. More than seven years later, plaintiff filed a petition to revive the judgment. The Board in turn moved to vacate the judgment based on lack of personal jurisdiction – i.e., that service of the summons on the secretary did not meet the statutory requirement (735 ILCS 5/2-211) that summons issued to the Board must be served on the president or clerk or other officer.

The court ruled that the Board’s motion was really a 2-1401 post-judgment petition, which is final and appealable. "The Board alleged that the default judgment was void because the trial court lacked personal jurisdiction due to defective service of process. We conclude . . . that the Board’s petition was one which sought post-judgment relief under section 2-1401 and could validly be brought outside the two-year limitations period." Regarding service, the court ruled that the evidence established that service on the Board’s receptionist constituted service on the Board’s president. "We adopt the rationale . . . that, where the evidence overwhelmingly established that the Board devised a regular system to accept service of summons and invited litigants to abide by and rely on that system, it is impermissible to allow the Board, at its whim, to treat service made as directed by it as improper service." The original judgment in the circuit court was affirmed.

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.