Publications

Section Newsletter Articles on Civil Law

Supreme Court broadly interprets EMS Act and limits liability of ambulance drivers for injuries to third parties By Amelia S. Buragas Tort Law, March 2014 In a case of first impression, the Illinois Supreme Court recently examined the bounds of the immunity provision of the Emergency Medical Services Systems Act in Wilkins v. Williams.
Affidavits and claims of privilege—The final word for now By Hon. Eugene G. Doherty Civil Practice and Procedure, November 2013 The following is Judge Eugene G. Doherty’s further reply to Mr. Balzer’s response from our October issue, which, absent new case law, will be our last word on this subject for a few months.
Does an affidavit really prove a privilege? By David J. Balzer Bench and Bar, November 2013 Unlike summary judgment motions and proving service on an individual, there is no Supreme Court Rule, Code of Civil Procedure section or Rule of Evidence carving out an exception that permits the use of an affidavit to prove a privilege. In other words, your opposing counsel has a decent argument that your affidavit is inadmissible hearsay. Ignoring this risks falling short of meeting your burden.
Follow-up on the article By Eugene G. Doherty and David J. Balzer Bench and Bar, November 2013 A reader's comments on the article, "Does an Affidavit Really Prove a Privilege,” and reaction to those comments from the article's author.
Prior consistent statements in trial practice: Can you use them? By Patrick M. Kinnally Civil Practice and Procedure, November 2013 Our judges and juries are smart enough to figure out that the mere repetition of what a witness thinks is true, even on a repetitive basis, does not make it so.
Follow-up on September article By Eugene G. Doherty and David J. Balzer Civil Practice and Procedure, October 2013 A reader's comments on the article, "Does an Affidavit Really Prove a Privilege,” and reaction to those comments from the article's author.
Does an affidavit really prove a privilege? By David J. Balzer Civil Practice and Procedure, September 2013 Unlike summary judgment motions and proving service on an individual, there is no Supreme Court Rule, Code of Civil Procedure section or Rule of Evidence carving out an exception that permits the use of an affidavit to prove a privilege. In other words, your opposing counsel has a decent argument that your affidavit is inadmissible hearsay. Ignoring this risks falling short of meeting your burden.
Forty-seven years not enough to sustain laches defense: Department of Natural Resources v. Waide By John W. Weiss Civil Practice and Procedure, September 2013 Examining the case law related to laches, the Fifth District emphasized that the mere passage of time is not enough to sustain a laches defense.
Common-Law Doctrine trumps Fraudulent Transfer Act in holding decedent self-settlor to irrevocable pledge By George S. Bellas and A. Patrick Andes Civil Practice and Procedure, February 2013 In Rush University Medical Center v. Sessions, the Illinois Supreme Court overturned the first district appellate court’s ruling in favor of a self-settled trust denying plaintiff Rush University Medical Center’s claim to a $1.5 million irrevocable pledge made by the settlor before he died, holding the trust was void as to existing and future creditors and Rush was entitled to the funds.
Does a corporation need a lawyer in state court? By Patrick M. Kinnally Civil Practice and Procedure, December 2012 Unless you are in a small claims trial court, the Illinois maxim as to corporate representation is ambiguous.
A promise to pay expenses is inadmissible to prove liability By Hon. Allen S. Goldberg and Rosezena Pierce Civil Practice and Procedure, November 2012 The holding in Lambert v. Coonrod means that even if the defendant makes a statement about his or her willingness to pay expenses arising out of an injury while liability is still being disputed, the plaintiff’s attorney cannot use this statement in court as an admission for the purpose of proving liability.
When dispositive motions are not served on counsel of record but that counsel failed to obtain leave of court to appear—What happens? By Robert Handley Civil Practice and Procedure, November 2012 A summary of the recent case of J.P. Morgan v. Straus.
Railroad owed no duty to child trespasser By Hon. Russell W. Hartigan and Christina Faklis Civil Practice and Procedure, October 2012 Along with playing with fire, drowning in water, and falling from heights, Illinois has now added moving trains to the list of obvious dangers that children should realize.
Standing to childrear: 2013 By Jeffrey A. Parness Civil Practice and Procedure, October 2012 For now, standing to childrear in Illinois will be generally limited to biological and adoptive parents. But that may change soon with increasing calls for statutory reforms and precedents recognizing that children’s best interests, as well as societal and quasi-parental interests, should not automatically yield to superior parental rights seemingly waived without any judicial oversight.
False and fictitious names in pleadings: How much does it matter? By Patrick M. Kinnally Civil Practice and Procedure, September 2012 The recent opinion of Rogasciano Santiago, a/k/a Juan Ortiz v. E. W. Bliss Company sheds some light, albeit little, on what we, as attorneys, must do when our clients fabricate their own identity, and then use that identity when filing litigation in our state trial courts. 
Is a duty owed? Adjoining landowners, passers-by, falling limbs and trees By Patrick M. Kinnally Civil Practice and Procedure, September 2012 The Appellate Court in Stackhouse v. Royce Realty and Management had little problem in assessing whether a tree falling on a person was reasonably foreseeable.
Does your claim allege educational malpractice? By Hon. James Fitzgerald Smith and Julia Illman Maness Civil Practice and Procedure, August 2012 Does an injured person have a cognizable claim for negligence against a former teacher for an injury occurring after instruction that the injured person claims can be traced to poor teaching?
Lessons of Tunca v. Painter By Hon. Russell W. Hartigan and Nick J. Moeller Civil Practice and Procedure, August 2012 The court opinion in Tunca v. Painter provides an important reminder of the importance of preserving the record and dismissed counts in cases where appellate review is sought. 
Supreme court clarifies fraudulent misrepresentation pleading requirements By Sara Siegall Civil Practice and Procedure, August 2012 Bonhomme v. St. James serves as an important reminder that practitioners should take care to preserve adverse rulings for appeal, and that the failure to take small, simple steps may lead to big and unfortunate consequences. 
The contractual right to appeal mandatory arbitration awards by invoking the trial de novo provision in underinsured-motorist coverage By James V. Krejci Civil Practice and Procedure, June 2012 The recent case of Phoenix Insurance Company v. Rosen settled conflicting Illinois Appellate decisions regarding trial de novoprovisions. 
Hanks v. Cotler: An example of the “apogee of disingenuousness” By Hon. Daniel T. Gillespie and Daniel J. Bishop Bench and Bar, June 2012 Justice Terry Lavin’s opinion in Hanks v. Cotler constitutes an excellent play-by-play analysis of the intersection of the statutes of limitations and the statutes of repose with the common-law discovery rule. 
Illinois Appellate Court affirms preliminary injunction requiring American Airlines to allow ticket sales through Orbitz.Com: Travelport, LP v. American Airlines, Inc. By Sara Siegall Civil Practice and Procedure, June 2012 ITravelport, LP v. American Airlines, Inc., the court confirmed that, in a commercial case, plaintiff’s loss of reputation and goodwill can satisfy both the “irreparable harm” and “inadequate legal remedy at law” elements required for the entry of preliminary injunctive relief.
Pre-trial issues in complex litigation: Court’s perspective By Hon. Barbara Crowder Civil Practice and Procedure, June 2012 This article recognizes some issues that may face both lawyers and judges in complex litigation, and explores some ways that the complex case may be approached to lessen confusion and problems.
Scales v. Benne: Appellate Court addresses the use of photos produced at time of trial By Bridget A. Mitchell Civil Practice and Procedure, June 2012 Disclosure of photos is governed by SCR 214, not SCR 213, and parties will be barred from using photos not produced prior to trial that were the subject of a SCR 214 request.
Hanks v. Cotler: An example of the “apogee of disingenuousness” By Hon. Daniel T. Gillespie and Daniel J. Bishop Civil Practice and Procedure, May 2012 Justice Terry Lavin’s opinion in Hanks v. Cotler constitutes an excellent play-by-play analysis of the intersection of the statutes of limitations and the statutes of repose with the common-law discovery rule. 
Parenthood in civil cases By Jeffrey A. Parness Civil Practice and Procedure, May 2012 Is it time to comprehensively examine all parentage statutes, or to recognize broader common law powers that would serve childrens’ best interests without interfering with the superior rights of parents?
Jablonski v. Ford: Is the Illinois Supreme Court crafting a new approach to duty analysis and proof in negligent-product-design cases? By George S. Bellas and A. Patrick Andes Bench and Bar, April 2012 The Supreme Court’s transition from Calles to Jablonski suggests that in negligent-product-design claims specifically and in products liability litigation generally, the Illinois Supreme Court may not yet be restricting duty analysis solely to the risk-utility test but has incorporated the consumer expectation test as a factor into the risk-utility test.
Gotta get back in time: Limitations of rescue by the savings statute By Adam B. Whiteman Civil Practice and Procedure, February 2012 If you intend to voluntarily dismiss a case with the intent of re-filing under the savings statute, you should be very careful to populate the dismissed complaint with as many facts and issues as possible. 
O’Connell v. Turner Construction, Inc. and Section 414 of the Restatement (Second) of Torts By Bridget Duignan Tort Law, February 2012 The demarcation between retained control and the lack thereof is not clear-cut and the Illinois Supreme Court has not revisited this issue since it first recognized Section 414 as a statement of Illinois law, over 45 years ago.
Sufficiency of tender terminating right to judgment interest By Mark Rouleau Civil Practice and Procedure, February 2012 The recent First District case of Poliszczuk v. Winkler, 2011 Ill. App. 1st Dist. 101847, discusses in detail what constitutes a sufficient tender of payment of judgment so as to toll the defendant’s further obligation to pay judgment interest pursuant to Illinois Code of Civil Procedure.