By Christopher S. Carroll

Following are summaries of three Illinois Supreme Court decisions published in the month of September. Two of them involve the Illinois Parentage Act.

Horwitz v. Holabird & Root. (Docket # 89351 May 2004). Clients are not generally vicariously liable for tortuous acts of their attorneys, who are independent contractors. Architects Holabird & Root (H&R) retained the law firm of Sabo & Zahn (S&Z) to collect a debt from Real Estate Developer Horwitz for architectural services. While prosecuting a citation against Horwitz, S&Z obtained tax returns covered by a confidentiality agreement. In breach of the confidentiality agreement, S&Z wrote to 40 investors and other business associates of Horwitz disclosing damaging and prejudicial information from Horwitz’ tax returns. Horwitz filed a complaint for tortuous interference and defamation against not only the law firm S&Z, but also against S&Z’s clients, H&R, under a theory of vicarious liability. H&R prevailed on a motion for summary judgment in the trial court, which ruled that, as a matter of law, they could not be held liable for their attorney’s tortuous conduct. The appellate court reversed, holding that an attorney’s wrongful conduct could be imputed to the client. H&R appealed to the Illinois Supreme Court, which reversed the appellate court. In an opinion by Justice Kilbride, the high court ruled that, when an attorney acts according to independent professional judgment, he or she is presumptively an independent contractor whose intentional acts may not be imputed to his/her client. The opinion noted that clients who hire lawyers because they lack knowledge of the law, are poorly equipped to micro manage their lawyer’s activities during the course of legal representation. Lawyers employing independent professional judgment possess a degree of autonomy that confers a presumption of independent contractor status upon them.

To defeat this presumption and impose vicarious liability on a client for his attorney’s intentional misconduct, the plaintiff must prove that the client specifically directed, controlled or authorized the attorney’s precise method of performing work, or that the client ratified acts preformed pursuant to an attorney’s exercise of professional judgment.

Justice Kilbride’s opinion noted that the cases from other jurisdictions deciding this issue were split. Chief Justice McMorrow filed a strong dissent joined by Justice Garman; Justice Freeman also dissented.

Abrams v. City of Chicago (Docket # 96210) May 20, 2004. The failure of a 911 operator to send an ambulance for a woman in labor was not the proximate cause of her injuries. Plaintiff, who was pregnant and experiencing labor pains every 10 minutes, telephoned the 911 center of the City of Chicago to request an ambulance because she did not have transportation to the hospital. Plaintiff’s sister also telephoned 911 with the same request, which was denied because labor pains 10 minutes apart were not considered a medical emergency. The 911 dispatcher referred the caller to a private ambulance service. Plaintiff contacted the private ambulance service, which told her that no ambulance was available, after which, Plaintiff contacted a friend who left her place of employment to transport plaintiff to the hospital. Plaintiff’s friend, while en route to the hospital, deliberately ran a red light because of the urgency of the situation. While doing so, the car in which plaintiff was traveling was struck by another car that was speeding 75 to 80 miles per hour, and was operated by a motorist under the influence of alcohol and crack cocaine driving on a suspended license. Plaintiff was so severely injured in the collision that she was comatose and her baby died after birth.

Plaintiff filed suit against the City of Chicago, which filed a motion for summary judgment alleging no duty and no proximate causation. The trial court granted the City’s motion for summary judgment on the proximate causation issue, but did not reach the duty issue. The plaintiff appealed to the appellate court, which reversed the trial court because the court found proximate cause under these facts.

The Illinois Supreme Court reversed the appellate court, and held that the City was not liable on proximate cause grounds and declined, as did the trial court, to address the issue of duty. In an opinion by Justice Thomas, the court summarized the existing law of proximate cause, as follows: (1) cause in fact is determined by answering the question, was defendant’s conduct a material element and substantial factor in producing the injury, and (2) legal cause is measured by foreseeability of the injury. However, when an intervening tortuous act of a third party contributes to produce the injury, liability will be imposed on the defendant if he might have reasonably anticipated that the intervening wrongful act was a natural and probable result of his own negligence. Speeding, intoxication and disregard of traffic signals were not reasonably foreseeable to a 911 dispatcher in her decision not to send an ambulance. Put differently, the traffic violations of two drivers in this case intervened to break the causal chain.

Hawes v. Luhr Brothers, Inc. (Docket # 96153). Section 2-1203 of the Code of Civil Procedure preempts common law rule governing court’s power to vacate voluntary dismissal. Plaintiff filed suit under the Jones Act in St. Clair County. The defendant, after filing its answer, filed a forum non-conveniens motion. The plaintiff voluntarily dismissed his state court action, and then filed in Federal Court. The dismissal order in state court did not reserve to plaintiff the right to reinstate. Following a motion to dismiss in Federal Court based on the statute of limitations, plaintiff moved to vacate his voluntary non-suit in State Court. The defendant objected asserting a common law doctrine that the Plaintiff must reserve the right to reinstatement in an order of voluntary dismissal. The common law rule originated in the case, Weisguth v. Supreme Tribe of Ben Hur, which antedated the enactment of the Illinois Code of Civil Procedure. Section 2-1203 allows a party to move to vacate a judgment within 30 days of thereof. The enactment of this procedural statute trumped the common law procedural rule enunciated in Wiesguth. Since prior case law held that a voluntary dismissal is a judgment under Supreme Court 272, the plaintiff could invoke Sect. 2-1203 to vacate his non-suit. However, the order vacating the voluntary dismissal was not appealable, so the court lacked jurisdiction to hear the appeal. The court discussed obiter dicta and judicial dicta in the early part of this opinion, and it appears to this reader that the court’s painstaking discussion of Sect. 2-1203 is dicta, since the actual holding of this decision was to dismiss the appeal.