DCBA - Recent Case Law

Recent Case Law

By Steven R. Merican

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

Following are summaries of opinions recently issued by the Illinois Supreme Court and the Seventh Circuit Court of Appeals:

In re Tekela, 2002 Ill. Lexis 373, Docket No. 91577 (8/29/02). Filing notice of appeal does not stay a parental termination order. Reversal and remand of termination order is mooted by intervening adoption. Wanda Cooper was judged to be an unfit parent, so her parental rights were terminated by the circuit court on summary judgment. She timely appealed the termination order, but she did not move for a stay of the judgment. Before the appellate court ruled on Wanda’s appeal, her children were adopted by foster parents. Unaware that the adoptions were completed, the appellate court issued its ruling reversing the termination order. The public guardian then informed the appellate court of the adoptions, and moved to vacate the appellate court’s order, arguing that the adoptions rendered the court’s order moot. The appellate court denied the motion to vacate. The public guardian then appealed the denial of its motion.

The supreme court rejected both of Wanda’s arguments and ruled that the adoption mooted the appellate court’s reversal of the termination order. The court disagreed “with Wanda’s contention that a notice of appeal acts as a substitute for a stay.” Wanda’s notice of appeal could not stay the termination order because “absent a contrary statutory provision or supreme court rule, an appeal by itself does not operate as a stay.” Because the termination order was not stayed, the circuit court had authority to move forward with the adoption proceeding. And because the adoption was valid, the appellate court’s order should have been vacated as moot. The supreme court stated: “The adoptions in this case and the lapse of the period to challenge them constitute intervening events that preclude this court from providing Wanda with relief in this case.”

Evans v. Shannon, 2002 Ill. Lexis 375, Docket No. 92238 (8/29/02). Commercial customer had no duty to inquire whether contractor’s employee was an unlicensed, incompetent, or reckless driver. Vogler Motors contracted with Bob’s Clean Up Shop to do detailing work on one of Vogler’s cars. Vogler had used Bob’s many times for a number of years for similar work. Derrick Shannon, an employee of Bob’s, picked up the car and brought it to Bob’s shop. Later, the shop was closed and locked up for the night. Shannon, who did not have a driver’s license, had a key to the shop. In an intoxicated condition, he retrieved the car for his personal use that same night. Unfortunately, while driving the car, he collided with Timothy Evans’s car. Evans died from injuries sustained in the accident.

Evans’s estate sued Vogler, Bob’s, and Shannon. After a trial, a judgment was entered against all three defendants. Vogler’s motions for a directed verdict and a judgment notwithstanding the verdict were denied.

The supreme court reversed the denial of Vogler’s motions. There was insufficient evidence to support plaintiff’s negligent entrustment claim against Vogler. The court identified the primary considerations in negligent-entrustment analysis: whether the owner of the vehicle entrusted the car to an incompetent or unfit driver; whether the incompetency was a proximate cause of plaintiff’s injury. In this case, Vogler’s information indicated there was no history of auto theft from Bob’s, and that Vogler’s car would be safe with Bob’s. The estate argued that Vogler’s had a duty to check whether Vogler’s employee had a valid driver’s license. The court rejected that argument, holding that ‘’unless a customer knows, or has reason to know, that an employee of the contractor is unlicensed, incompetent or reckless, the customer has not duty of further inquiry.” The court ruled that the duty to investigate and police employees is better left to the employer, not the customer. And finally, there was no evidence to show that Vogler’s permission to Shannon to operate the car extended beyond usual business hours. Shannon’s essentially criminal act, trespass to the vehicle, was beyond the purview of the permission granted to Shannon. Vogler did not know, nor should have known, that the car would likely be used in a manner involving unreasonable risk of harm to others. Nor was there express or implied permission to use the car that night. Therefore, there was no entrustment.

Zeidler v. A & W Restaurants, Inc., 2002 U.S. App. Lexis 17276, No. 01-1341 (7th Cir. 8/21/02). Franchisee that closes and abandons restaurant cannot later sue franchisor for breach of the franchise agreement and violations of Illinois Franchise Disclosure Act. Plaintiffs were owners and franchisees of an A & W Restaurant. A few years after plaintiffs began operating the restaurant, A & W sent letters to plaintiffs that threatened termination of the franchise. A & W cited violations of its health and sanitation standards, and the lapse of liability insurance. Eventually, plaintiffs closed the restaurant and removed the equipment, claiming that A & W’s threats, issued in bad faith, made it impossible to run the business. A & W then formally terminated the plaintiffs’ franchise.
The franchisees sued A & W for breaching the licensing agreement and for violation of the Illinois Franchise Disclosure Act. The district court granted A & W summary judgment, finding that A & W was justified in terminating the franchise. The appellate court agreed and ruled that plaintiffs “closing down of their restaurant bars them from establishing that A & W wrongfully terminated the franchise.” Closing the restaurant “also dooms their IFDA claim because the statute recognizes voluntary abandonment of a franchise as ‘good cause’ for a franchisor to terminate a license agreement.” The court rejected plaintiffs’ argument that they could not operate the restaurant under the threat of termination of the franchise. The court stated: “Even assuming that A & W threatened the Zeidlers [plaintiff/franchisees] in bad faith, the Zeidlers have not shown how those threats caused them to shut the restaurant down.”

Todd v. Duneland School Corp., 2002 U.S. App. Lexis 16629, No. 01-3667 (7th Cir. 8/19/02). Reimbursement for child’s education denied under the Individuals with Disabilities Education Act. Plaintiff Margaret Todd removed her son from the public school, which had been giving him special education pursuant to the Individuals with Disabilities Education Act (“IDEA”). She placed him in a private school for his high school years, then demanded reimbursement from the public school for the expenses she incurred at the private school. An administrative proceeding was held, and Todd was awarded her expenses for her son’s private education. The award was reversed on review by the Board of Special Education Appeals. Todd sued in the district court to reverse the Board’s ruling. The district court granted summary judgment in favor of the Board, and the Seventh Circuit affirmed.

The court pointed out that a parent who unilaterally changes a child’s school placement without state or local school consent is “entitled to reimbursement only if a federal court concludes both that the public placement violated the IDEA and the that private school placement was proper under the Act.” However, in this case, the court ruled that the education plan for Todd’s son “was reasonably calculated to provide [the child] with the requisite educational benefit.” In fact, the record revealed that the child “received good grades and advanced from grade level to grade level while at the defendant’s schools.”

Todd was unhappy with, among other things, the education plan for her son because it did not include an extended school year. But the record showed that the public school considered and rejected summer school. The court, obliged to give deference to the Board’s findings, stated: “Further, given the lack of regression, [the child’s] ability to progress, and our deference to the BSEA [Board], we find no error in the defendants’ rejection of an extended school year.”

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.