The Bar News

Quick Takes on Illinois Supreme Court Opinions Issued Friday, December 28

The Illinois Supreme Court handed down four opinions on Friday, Dec. 28. In Sienna Court Condominium Ass'n v. Champion Aluminum Corp., the court addressed the question of whether a purchaser of a newly constructed home could assert a claim for breach of an implied warranty of habitability against a subcontractor that had no contractual relationship with the purchaser. In Stanphill v. Ortberg, the court reviewed a jury verdict hinging on the foreseeability of a depressed person’s suicide. The court considered whether five monetary charges were fines or fees in People v. Clark and determined there was no probable cause to execute a search warrant in People v. Manzo.

Sienna Court Condominium Ass'n v. Champion Aluminum Corp.

By Joanne R. Driscoll, Forde Law Offices LLP

Modifying the questions certified by the circuit court, the Illinois Supreme Court addressed as a threshold inquiry the question of whether a purchaser of a newly constructed home could assert a claim for breach of an implied warranty of habitability against a subcontractor that had no contractual relationship with the purchaser. The court answered this question in the negative and, in doing so, overruled Minton v. The Richards Group of Chicago, 116 Ill. App. 3d 852 (1983). Minton held that the purchaser could bring such a claim against a subcontractor when the purchaser had no recourse to the builder-vendor and sustained loss due to faulty and latent defects caused by the subcontractor. Id. at 855.

The plaintiff, a condominium association, filed a lawsuit against the developer, the general contractor, architect and engineering design firms, material suppliers, and several subcontractors. The majority of the counts alleged claims for breach of implied warranty of habitability based on latent defects that rendered both the individual units and common areas unfit. Prior to the filing of the complaint, the developer and general contractor were declared bankrupt, although the plaintiff was able to recover some proceeds from those defendants from insurance policies and a warranty escrow fund. The subcontractor defendants and the material suppliers moved to dismiss on grounds that they were not subject to breach of implied warranty claims. The circuit court denied the motion, applying Minton, and certified questions premised on Minton. The appellate court followed Minton and answered the certified questions in a manner that would allow the plaintiff to proceed on its claims against the subcontractors.

In support of extending breach of implied warranty claims to subcontractors, the plaintiff argued that the warranty of habitability was implied by the courts as a matter of public policy to builder-vendors and did not arise out of the purchase contract. It was, in reality, a duty in tort that could be similarly applied to subcontractors in the same way as a tort claim is applied against component suppliers in product liability law. The court rejected that argument, explaining that it was refuted by the economic loss rule, recognized in Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69 (1982), which denies a remedy in tort to a party whose complaint is rooted in disappointed contractual or commercial expectations. According to the court, the warranty implied in the contract of sale was that the house would be reasonably suited for its intended use, which is the definition of economic loss, and, thus, is a creature of contract, not tort. The absence of any contract between the plaintiff and the subcontractors doomed its warranty of habitability claims.

Dissenting, Justice Kilbride opined that applying the implied warranty of habitability to subcontractors follows directly from the court’s case law that established the implied warranty of habitability against builder-vendors and then extended that warranty to subsequent purchasers as a matter of public policy and for the purpose of protecting innocent purchasers who lacked privity of contract.  According to Justice Kilbride, the same policy considerations that supported applying the implied warranty to builder-vendors also exist as to subcontractors.

Stanphill v. Ortberg

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

In this professional negligence case against a licensed clinical social worker, the Illinois Supreme Court reviewed a jury verdict hinging on the foreseeability of a depressed person’s suicide. Plaintiff Zachary Stanphill, son of the decedent, Keith Stanphill, contended that the defendant, Lori Ortberg, inadequately diagnosed Keith’s mental health when Ortberg evaluated him, failed to recognize that he posed a high risk for suicide, and that, as a consequence of Ortberg’s professional negligence, Keith committed suicide one week following an appointment with Ortberg. The Illinois Supreme Court addressed whether a jury’s answer to a special interrogatory, which asked the jury to consider the foreseeability of the injury, required reversal of a wrongful death verdict for plaintiff. The supreme court focused on whether the interrogatory directed the jury’s attention to the objective view of a reasonable licensed social worker and not to Ortberg’s subjective impressions. Finding that the interrogatory erroneously applied a subjective standard, the supreme court ruled that the trial court should not have given the special interrogatory and that an answer to the question could not control the jury’s general verdict.

Writing for the court, Justice Anne Burke recounted the history of Keith’s mental health condition. Married with two children, Keith became depressed after learning that his wife had a romantic relationship with a co-worker. Keith participated in counseling sessions and was prescribed anti-depressant medication, but continued to deteriorate. Seeking further counseling through his wife’s employee assistance program, Keith saw Ortberg for an appointment. Keith stated in a self-assessment questionnaire that, “‘most of the time’” he had feelings of harming himself, sadness, and being on the verge of losing control. Ortberg, who did not recall her one appointment with the decedent, testified based on her custom and practice and her notes, which reflected that Keith denied having a suicide plan or suicidal ideation. Defense expert witnesses also noted that, on Ortberg’s recommendation, Keith made a follow-up appointment with another counselor specializing in individuals with marital difficulties. One week after the appointment with Ortberg, Keith died of his own accord through asphyxiation due to carbon monoxide poisoning.

At trial, a jury considered whether Ortberg failed to properly assess Keith’s condition and failed to refer him to a psychiatrist or a hospital emergency room. The jury reached a general verdict and awarded approximately $1.5 million on plaintiff’s wrongful death claim. The jury also answered “no” to a special interrogatory inquiring “‘[w]as it reasonably foreseeable to Lori Ortberg on September 30, 2005, that Keith Stanphill would commit suicide on or before October 9, 2005?’” Because the special interrogatory tracked the language of a special interrogatory approved in an analogous 2011 appellate decision, Garcia v. Seneca Nursing Home, the circuit court found that the “no” answer compelled judgment in favor of Ortberg and her co-defendant employer.

The supreme court noted the general rule in wrongful death cases involving suicide, that, as a matter of law, a decedent’s voluntary act of suicide breaks the causal link between any alleged negligent conduct and the injury as an independent, intervening act that is unforeseeable. Yet, where a plaintiff can establish that the suicide was a reasonably foreseeable result of the defendant’s negligence, a plaintiff may overcome the general rule and prove proximate cause.

In the appellate court, defendants challenged application of the “reasonable person” standard in this professional negligence case. The appellate court and the supreme court disagreed; the supreme court stated that an objective, professional standard should have been incorporated into the interrogatory by asking whether it was foreseeable to a reasonable licensed clinical social worker that Keith was at risk of committing suicide. While acknowledging that the Garcia appellate decision contained subjective phrasing, the supreme court observed that the plaintiff in Garcia did not object to a special interrogatory based on whether the question’s wording was subjectively phrased. Rather, the appellate court in Garcia addressed plaintiff’s contention that the interrogatory was too narrow, because the death may have been an accident. To the extent that Garcia approved a subjective foreseeability standard, the supreme court overruled the decision. The supreme court, accordingly, remanded the Stanphill case for the entry of judgment on the general verdict for plaintiff.

Justice Rita Garman dissented. Justice Garman wrote that the majority misread the interrogatory by seeming to overlook the modifier “reasonably” before the word “foreseeable.” In Justice Garman’s view, this phrasing posed an objective inquiry as to whether the decedent’s actions were reasonably foreseeable.  

People v. Clark

By Kerry J. Bryson, Office of the State Appellate Defender

In recent years, a frequent subject of criminal appeals has been whether various assessments imposed on criminal defendants constitute fines or fees. If an assessment is a fine, it can be offset by a defendant’s presentence custody credit pursuant to 725 ILCS 5/110-14(a). Essentially, a defendant “earns” $5 for each day he or she is in custody prior to sentencing, which can be credited toward the fines imposed in the case. If an assessment is a fee, however, there is no offset.

While the legislature’s labeling of an assessment as a “fine” or a “fee” is strong evidence of its intent, the label is not dispositive. In Dennis Clark’s case, the Illinois Supreme Court considered whether five monetary charges were fines or fees. In making this determination, the court looks to whether the assessment is imposed only after conviction and whether the assessment is mandatory, both of which weigh in favor of finding the assessment to be a fine. Most important, however, is whether the assessment’s purpose is to compensate the state for any costs incurred in defendant’s prosecution. If it is, then the assessment is a fee.

Clark challenged the following charges: Public Defender Records Automation, State’s Attorney Records Automation, Felony Complaint Filed, Court Automation, and Court Document Storage. The majority concluded that, while these are mandatory and imposed upon conviction, each is a fee because each is intended to reimburse the state for the costs of prosecution. In doing so, the court overruled People v. Camacho, 2016 IL App (1st) 140604, where the Public Defender Records Automation Fund charge had been held to be a fine. Because each assessment at issue here was held to be a fee, Clark could not apply his statutory presentence custody credit to offset those charges. Justice Neville dissented in part. He would have followed Camacho and concluded that both the Public Defender and State’s Attorney Records Automation charges were fines because they do not seek to reimburse the state for a specific defendant’s prosecution.

While this case resolves the issue of whether certain assessments are fines or fees, its application will be limited. As the court noted, effective July 1, 2019, the Criminal and Traffic Assessment Act takes effect. That act repeals the assessment statutes at issue here and consolidates those assessments, and various others, into a single statute allowing for presentence custody credit against both fines and fees (See Public Act 100-987).

People v. Manzo

By Jay Wiegman, Office of the State Appellate Defender

According to Sir Edward Coke, “the house of any man is to him as his Castle.” Recognizing this, the home has long been considered the “first among equals” under the Fourth Amendment. People v. Burns, 2016 IL 118973, ¶ 24. Thus, it has been recognized that “the ‘chief evil’ deterred by the fourth amendment is the physical invasion of the home.” People v. Manzo, 2018 IL 122761, ¶ 35, citing Payton v. New York, 445 U.S. 573, 585-86 (1980).

In Manzo, the target of a Joliet police investigation was not the defendant but rather a man named Ruben Casillas, who was the cousin of the defendant’s girlfriend (whom Manzo has since married). Over the course of 19 days, the police made three undercover purchases of cocaine from Casillas. During one of these undercover buys, Casillas drove his cousin’s car to the exchange. Immediately prior to another, he was seen leaving his cousin’s house, in which the defendant lived, and walking to the transaction. An officer applied for a search warrant of the house in which Manzo lived; in doing so, the officer cited these observations and additionally indicated that Casillas had been positively identified from his driver’s license records and was associated with Manzo’s girlfriend, who lived at the house, and that two of the three transactions occurred near the house. Executing the search warrant at the defendant’s home, officers found drugs and other indicia of delivery of drugs, including a handgun. Ultimately, the defendant was acquitted of unlawful possession of a controlled substance with intent to deliver but guilty of unlawful possession of a weapon by a felon.

While the circuit court found probable cause supported the issuance of the warrant because Casillas was seen leaving the house before the third buy, and while the majority of the Appellate Court, Third District, found probable cause based on that and the additional fact that Casillas used a car registered to the defendant’s address to drive to the first transaction, the Illinois Supreme Court, in a 4-3 decision, found that those facts failed to establish a sufficient nexus between Casillas’ criminal activities and the defendant’s residence. Manzo, 2018 IL 122761, ¶ 38-39. Writing for the majority, Justice Thomas stated that the complaint for the search warrant failed to create an inference that Casillas and his cousin were involved in drug dealing or trafficking together, “let alone that Casillas was storing evidence of drug dealing at defendant’s home.”  Manzo, 2018 IL 122761, ¶ 39. More pointedly, Justice Thomas wrote: “[t]he fact that an alleged drug dealer drives another individual’s car to one drug deal does not create an inference that the vehicle’s owner has contraband in his car or her home and does not justify a search of the vehicle owner’s home. To hold otherwise could expose virtually any innocent third party to a search of the home.” Manzo, 2018 IL 122761, ¶ 41. The majority opinion further noted that the officer’s sworn statement failed to detail his experience with drug investigations and arrests, and contrasted the complaint for search warrant with cases such as U.S. v. Garcia-Villalba, 585 F.3d 1223 (9th Cir. 2009), in which the officer detailed his professional and personal experience with the investigation, discussed “stash houses,” and spent ten pages describing the information obtained through electronic surveillance and how the officers determined the premises to be searched was a stash house. Manzo, 2018 IL 122761, ¶¶ 56, 60.

After determining that the appellate court erred when it affirmed the trial court’s order denying the defendant’s motion to suppress, the court considered whether the exclusionary rule applied. The majority found applicable the third of the four situations recognized by the United States Supreme Court in United States v. Leon, 468 U.S. 897 (1984), which explained that an officer could not submit a “bare-bones” affidavit and then rely on other officers who were not aware of the circumstances under which the warrant was obtained to conduct the search. Manzo, 2018 IL 122761, ¶ 64. Thus, Justice Thomas wrote that the majority “decline[d] to sanction the search of a third party’s home based solely on the fact that an individual was seen leaving that home to go to one drug deal and arrived at another drug deal 19 days earlier driving a vehicle registered to that home. To hold otherwise would undermine the express protections accorded to a citizen’s home under the United States and Illinois Constitutions.” Manzo, 2018 IL 122761, ¶ 71. The appellate court’s order was reversed, as was the trial court’s denial of the defendant’s motion to suppress. Additionally, the defendant’s conviction for unlawful possession of a weapon by a felon was reversed and remanded.

Justice Garman wrote a dissent, in which Chief Justice Karmeier and Justice Burke joined. Justice Garman observed that probable cause to support the issuance of a search warrant depends on the totality of the circumstances. Manzo, 2018 IL 122761, ¶ 71 (Garman, J., dissenting). Considering the circumstances as a whole, the dissenting Justice believed it reasonable that the officers would think that Casilla kept drugs at his cousin’s house. The dissenting justice reviewed several federal cases in which the affidavits at issue were found to be “bare-bones” and determined that, by comparison, the instant officer’s affidavit was “well within the bounds that courts have set for good faith reliance on a warrant application.” Manzo, 2018 IL 122761, ¶ 71 (Garman, J., dissenting).

Posted on January 2, 2019 by Rhys Saunders
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