Vested Interest - Committee Update - May 1998 Issue

Amicus

1. LaFever v. Kemlite Co. Driver of industrial waste truck who was injured when he slipped and fell while servicing waste facility for fiberglass plant filed negligence suit, alleging that plant owner failed to maintain walkway, failed to warn him of dangerous condition, and negligently allowed fiberglass waste to accumulate on walkway. Plant owner filed third-party action against driver’s employer, alleging that driver’s injuries were proximately caused by employer’s negligence. The Circuit Court, Cook County, James S. Quinlan, Jr., J., entered judgment against plant owner in amount of $1,066,148.15. After employer was allowed to waive its workers’ compensation lien in amount of $222,267.02 to set off its contribution liability to plant owner, trial court modified jury verdict and reduced it to $843,881.13. Plant owner appealed, and plaintiff cross-appealed. The Appellate Court, Theis, J., held that: (1) owner owed duty of care to driver; (2) jury’s finding that fall was proximate cause of plaintiffs back injury was not against manifest weight of evidence; (3) award of $250,000 for future pain and suffering was not against manifest weight of the evidence; (4) trial court abused its discretion by sending issue of future lost earnings to jury; and (5) employer could not avoid its attorney fees and costs obligation to plaintiff by post-trial waiver of its workers’ compensation lien and setoff of its contribution liability to plant owner.

   Marc A. Taxman of Anesi, Ozmon, Rodin Novak & Kohen, Ltd., Chicago, for PlaintiffAppellee/Cross-Appellant LaFever. Michael B. Kilgallon of Kilgallon, Carlson & Simkus, Chicago (Lynn D. Dowd, of counsel), for Defendant-Appellant/CrossAppellee Kemlite Co. David F. Buysse of Garofalo, Hanson, Schreiber & Bandlik, Chtd., Chicago, for Third-Party Defendant-Appellee BannerA/Vestern Disposal. La Fever v. Kemlite Co., 293 III.App.3d 260 (1st Dist. 1997). PLA was granted on Wednesday April 1, 1998.

2. Tosado v. Miller Plaintiffs filed separate complaints against county hospital and its doctors for medical malpractice. Defendants moved to dismiss complaints on basis that complaints were filed after expiration of the one-year limitations period of Local Governmental and Governmental Employees Tort Immunity Act. The Circuit Court, Cook County, Loretta C. Douglas and Phillip L. Bronstein, JJ., denied defendants’ motions and held that the two-year limitations period of the Code of Civil Procedure controlled. The courts in both cases certified the following question of which statute of limitations applies to malpractice actions against county hospital and its physician employees. The Appellate Court, Rakowski, J., held that statute of limitations that applied to malpractice actions against county hospital and its physician employees was the one-year limitations period of theTort immunity Act, not the two-year limitations period governing medical malpractice actions.

   William A. Hertzberg & Associates, Chicago, for Plaintiff-Appellee. Jack O’Malley, State’s Attorney of Cook County, Chicago (Patricia Shymanski, Richard A. Stevens, JudyMondello Wick, Mary Margaret Burke and Sara Dillery Hynes, of counsel), for Defendants-Appellants. Tosado v. Miller, 228 III.Dec. 76 (1st Dist. 1997). PLA was granted on Wednesday April 1, 1998.

3. Hobart v. Shin Administrator of estate of mental patient, who had committed suicide by overdosing on antidepressant medication prescribed by her physician, brought medical malpractice action against physician. The Circuit Court, Cook County, Leonard L. Levin, J., entered judgment on jury verdict for physician, and plaintiff appealed. The Appellate Court, Buckley, J., held that: (1) trial court abused its discretion in granting physician leave to amend answer to add affirmative defense of contributory negligence, and (2) allowing physician to assert that patient had contributorily negligent in acting in manner consistent with her disorder was reversible error.

   Goldberg & Goldberg, Chicago and David A. Novoselsky & Associates, Chicago (David A. Novoselsky, Margarita T. Kulys, of counsel), for PlaintiffAppellant. Swanson, Martin & Bell, Chicago (Kevin T. Martin, Robert J. Meyer, Kevin V. Boyle, of counsel), for Defendant-Appellee. Hobart v. Shin, 292 III.App.3d 580 (1st Dist. 1997). PLA was granted on Wednesday April 1, 1998.