March 2023 Case Notes & Comments

"Our dreams can come true, if we have the courage to pursue them."
~ Walt Disney

MONTHLY QUIZ: Resident, who lives in Boone County at a long-term care facility, allegedly receives negligent and improper care and treatment. Following Resident's death, Resident’s Estate (McHenry County resident) files suit in the circuit court of Cook County, alleging negligence and violations of the Illinois Nursing Home Care Act against defendants, Care Facility, Care Facility’s management company and registered “Agent” (Cook County resident) and two doctors (Winnebago County residents). Two of the witnesses, who provided “consulting or management services” but who have no personal knowledge as to Resident’s care are Cook County residents. However, the majority of the remaining potential trial witnesses, including Care Facilities’ employees, Resident’s family members and other medical personnel, are primarily residents of either Boone or Winnebago County, which are adjacent to one another. Even though venue is statutorily proper in Cook, Defendants move to transfer venue pursuant to Rule 187 and the doctrine of forum non conveniens, arguing that Estate’s complaint does include any facts that tie her claims to Cook County. Defendants motion to transfer venue is denied and Defendants appeal. In adjudicating such venue motions, a plaintiff's choice of forum is ordinarily given deference. However, IL courts also consider a number of private factors, including: (1) convenience of the parties; (2) access to evidence; (3) availability of unwilling witnesses; (4) costs to obtain witnesses; (5) possibility of viewing the premises; and (6) practical considerations that make trial easy; and public factors, including: (1) court congestion; (2) unfairness of burdening jurors with unrelated cases; and (3) the interest in having controversies decided locally, in determining forum. Which factors weigh in favor of a transfer? Which do not? Should the trial court have granted the motion to transfer venue? You be the judge. (Answer Below).

ILLINOIS SUPREME COURT HOLDS THAT THE FIVE YEAR STATUTE OF LIMITATIONS APPLIES IN ILLINOIS BIOMETRIC-INFORMATION PRIVACY ACT (BIPA) CLAIMS: Illinois’ BIPA statute generally prohibits private companies from collecting a person's “biometric identifiers” (i.e. certain body measurements or calculations related to human characteristics, such as fingerprints, voiceprints or iris scans), unless the company advises that person, in writing, that the data was collected, sets forth the purpose and timeline for the data storage and the person consents. The Illinois BIPA statute includes a $5,000 per violation liquidated damages provision, but does not have an explicit statute of limitations. In March 2019, Plaintiff filed a class action complaint alleging that an Illinois Employer violated BIPA through its timekeeping practices, which involved scanning and storing its Employees’ fingerprints. In one of the most-awaited recent Illinois decisions, the Illinois Supreme Court held that the catch all five-year statute of limitations applies to all BIPA actions. The Illinois Supreme reversed the appellate court, which applied two different limitation periods to different portions of the BIPA statute. The Illinois Supreme Court reasoned that “applying two different limitations periods or timebar standards to different subsections of [the statute] would create an unclear, inconvenient, inconsistent, and potentially unworkable regime as it pertains to the administration of justice for claims under” BIPA. Additionally, the high court found that the longer, five-year limitations period, comported with the public welfare and safety aims of the General Assembly, given the nature of a BIPA actions - which can involve fears that highly sensitive biometric information may be disclosed. EDITOR’S NOTE: In general, this recent decision increases the likelihood that Illinois employers will be exposed to class-action suits for improper collection and/or storage of biometric information. Tims et al. v. Black Horse Carriers, Inc., 2023 IL 127801 (Feb. 2, 2023).

LEF PARTNER SPEAKING AT PLRB’S 2023 ANNUAL CONFERENCE AND INSURANCE SERVICES EXPO: LEF Partner, Roland Keske, will be speaking at the Property & Liability Resource Bureau’s (PLRB) Annual Conference in Orlando, Florida March 19-22, 2023. He will be co-presenting with insurance industry expert, Karen Tucker, on “Analysis of Claims Arising From Autonomous Vehicles.” Through its Annual Conference and other events, the PLRB continues in its mission to promote education and new and beneficial developments within the property and casualty insurance industry. The PLRB works to disseminate information on property and liability issues among its members and within the insurance industry. We look forward to seeing you at the conference and elsewhere!

PREMISES LIABILITY - ONE DRINK MINIMUM / ONE DUTY MAXIMUM: Patron, a customer with mobility issues, went to see a drag show on the 2nd-floor of a bar with her friends, who assisted her up the stairs. Although steep, the stairs and carpet were flat and even. There were no issues with the handrails and the stairwell lights were working. Patron fell and was injured while descending the stairs on her own. Patron filed suit against the bar’s Owner, alleging that Owner failed to properly light and maintain the stairwell and for knowingly creating a hazardous condition by serving alcohol on the 2nd-floor that was only accessible by stairs. Patron also presented evidence that the bar employees were aware of Patron’s mobility issues. The trial court granted Owner’s motion for summary judgment and Patron appealed. In affirming summary judgment for Owner, the Court found no dispute that Patron knew of the potential danger as there were posted warning signs, stating ““Caution – Please watch your step.” Patron also testified that she was able to see the stairs in front of her and was aware of the steep pitch, as she had already ascended them. Additionally, the Court held that a landowner with knowledge of a patron’s difficulty walking or balancing owed a duty to warn or a duty to provide assistance, but not both. The presence of the “Caution” sign satisfied Owner’s duty, and Owner did not have an additional duty to physically assist Patron down the stairs. Schnaare v. Bubby & Sissy’s, Inc., 2023 IL App (5th) 220133-U (Jan. 6, 2023).

ANSWER TO QUIZ: Defendants are right. The case should have been transferred as the balance of factors strongly favored Boone County. While plaintiff's choice of forum is ordinarily given priority, it was given less deference here because the Estate was not a Cook County resident and the accident occurred outside Cook County. Here, since the majority of Defendants and witnesses resided in Boone or Winnebago counties, the first private factor (i.e. convenience of the parties) strongly favored a transfer. While it largely found the other factors neutral, the Court reasoned that since the accident occurred in Boone County, the fifth private factor (i.e. viewing the scene) and sixth private factor (i.e. “practical considerations”) also favored a transfer. Additionally, the Court determined that all of the public interest factors, including (1) court congestion; (2) unfairness of burdening jurors with unrelated cases; and (3) the interest in having controversies decided locally, weighed in favor of a transfer. Remanded with directions to transfer to Boone County. Monteagudo v. The Gardens Of Belvidere, LLC d/b/a Park Place of Belvidere, et al., 2023 IL App (1st) 220045-U (Feb. 24, 2023).

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