Cited Cases
Edmund Scanlan has not only been personally trying jury and bench trials in both state and federal courts for over twenty seven years, but he has also prepared appellate briefs and argued cases in both Appellate and Supreme Courts. Many of these cases have been published and are set forth below along with a brief statement of the holding.
- Hollembaek v. Dominick's
137 Ill. App. 3d 773, 484 N.E. 2d 1237 (1985) - Cairns v. Hansen
170 Ill. App. 3d 505, 524N.E. 2d 939 (1988) - Briante v. Link
184 Ill. App. 3d 812, 540 N.E. 2d 844 (1989) - Masotti v. Console
195 Ill. App. 3d 838, 552 N.E. 2d 1292 (1990) - Kwasniewski v. Schaid
153 Ill. 2d 550, 607 N.E. 2d 214 (1992) - Spencer v. Wandolowski
264 Ill. App. 3d 611, 636 N.E. 2d 854 (1994) - Klem v. Mann
279 Ill. App. 3d 735, 665 N.E. 2d 514 (1996) - Ward v. Mid American Energy Company
313 Ill. App. 3d 258, 729 N.E. 2d 861 (2000)
Hollembaek v. Dominick's
137 Ill. App. 3d 773, 484 N.E. 2d 1237 (1985)
The missing witness instruction permits the jury to infer that the testimony of a witness which a party failed to call would be adverse to the party when the missing witness was under the control of the party, and no reasonable excuse for the failure to call the witnesss has been shown. The Appellate Court held that it was proper for the trial court to give this instruction in the situation where the defendant hires a medical expert to perform an examination of the plaintiff and then fails to call that witness to testify at trial. The Court affirmed a jury verdict in the amount of $216,000. in favor of the plaintiff and against Dominick's Finer Doods, Inc. in this slip and fall lawsuit.
Cairns v. Hansen
170 Ill. App. 3d 505, 524N.E. 2d 939 (1988)
The administrator of deceased motorcyclist's estate brought an action for the wrongful death of the decedent arising from an auto-motorcycle collision. At autopsy the deceased motorcyclist's blood-alcohol reading was .124, which gives rise to a presumption that the decedent was intoxicated at the time of the collision. The trial court prohibited the plaintiff from introducing any evidence to rebut this presumption on the basis that plaintiff's admisssion of a request to admit the blood alcohol reading acted as a judicial admission that precluded any rebuttal. Plaintiff had been prepared to introduce evidence that while the blood alcohol reading taken at autopsy was scientifically accurate, the blood alcohol reading was not indicative that the decedent was intoxicated since the decedent's peritoneal cavity had been ruptured and the alcohol in decedent's stomach commingled with the blood thus destroying the reliability of the blood alcohol reading in determining whether the decedent was intoxicated. Plaintiff was prepared to illicit testimony that when the peritoneal cavity is compromised the proper method for testing for alcohol intoxication is to test the vitreous fluid. The Appellate Court ruled that the trial court erred in barring the plaintiff from introducing this rebuttal testimony, but also found that this error would
not have effected the ultimate verdict for the defendant.
Briante v. Link
184 Ill. App. 3d 812, 540 N.E. 2d 844 (1989)
The plaintiff, a pedestrian, brought an action for injuries he sustained when he was struck by a car while crossing the street outside the crosswalk. The jury awarded the plaintiff $515,200. for lost income, and the defendant appealed contending that this award was unreasonable and not based on the evidence. Plaintiff's economist testified that the present value of plaintiff's loss of income to age 65 was $388,082. The Appellate Court reasoned that since there was evidence ellicited on cross examination that if plaintiff was only to work until age 62 there would be a reduction of $25.666. per year, "conversely, the jury could also conclude from this evidence that $25,666. could be added for each year beyond age 65." The Court held there was sufficient evidence to support an award of $515,200.
Masotti v. Console
195 Ill. App. 3d 838, 552 N.E. 2d 1292 (1990)
The plaintiff, a teenage pedestrian, filed suit for injuries he sustained when he was thrown from the hood of a car being driven by a teenage motorist. Sixteen year old driver was trying to ditch his three teenage friends by leaving them at a parking lot where they had parked to go rafting in a local creek. Plaintiff jumped on the hood of defendant's car, and the defendant driver started and stopped in an effort to have plaintiff fall off the car. The trial judge granted defendant's motion for summary judgment stating: "..under the facts of this case, the relationship that existed between plaintiff and defendant and the conduct of the plaintiff raised no duty upon defendant toward plaintiff."
Plaintiff appealed and the Appellate Court reversed the trial court's order granting summary judgment stating: "...the injury here was not so highly extraordinary that it should not be within the scope of Peter's duty to plaintiff. Peter's duty to operate his vehicle safely was designed to protect others from collision or injury because of his driving. Plaintiff's foot was run over after he fell from the moving car. Peter's duty was designed to protect plaintiff from being hit, run over, or otherwise injutred as a result of Peter's operation of the vehicle." Edmund Scanlan subsequently tried the case before a jury, and received a gross verdict in the amount of $290,000. less 27.5% for plaintiff's comparative fault for a net verdict of $210,250.
Kwasniewski v. Schaid
153 Ill. 2d 550, 607 N.E. 2d 214 (1992)
The plaintiff, an Illinois resident, filed this lawsuit seeking damages for the wrongful death of his wife as well as for his own personal injuries arising from a three car accident that occurred in Walworth County, Wisconsin. He filed suit in McHenry County, Illinois against defendants Keith Schaid and his employer, Button Construction Co., residents of Illinoois. Based upon the doctrine of interstate forum non conveniens Defendants brought a motion to dismiss the McHenry County, Illinois action, arguing that Walworth County, Wisconsin, would be a more convenient forum. The trial court denied defendants motion, and the Illinois Supreme Court granted leave to appeal. The Ill. Supreme court stated :"A plaintiff is given the right to select the forum, and unless the public and private interest factors strongly weigh in favor of transfer, a plaintiff's choice of forum will rarely be disturbed....Less deference is given, however, where the plaintiff is not a resident of the chosen forum....A plaintiff's "home forum" for purposes of interstate forum non conveniens is the plaintiff's home state.
The Illinois Supreme Court denied defendants' motion to dismiss stating: "Most significantly, the suit was brought in defendants' home county. It is all but incongruous for defendants to argue that their own home county is inconvenient." Defendants were seeking to transfer this action to the State of Wisconsin so that they could secure the benefit of the $150,000. cap on non economic ddamages that was in effect at the time.
Spencer v. Wandolowski
264 Ill. App. 3d 611, 636 N.E. 2d 854 (1994)
the plaintiff, a Chicago firefighter, who was operating his motorcycle on his way to the firehouse sued truck driver and trucking company for injuries sustained when truck changed lanes on a Chicago expressway and the truck's trailer ran over the plaintiff's legs. After a jury trial a jury returned a verdict for plaintiff in the gross amount of $609,111. reduced by plaintiff's 50% comparative fault to $304,555. On appeal the Appellate Court reversed a ruling by the trial court that granted plaintiff's motion in limine to bar the defendant from illiciting testimony from an Illinois state trooper that she had observed the plaintiff riding on the shoulder of the expressway ten minutes before the plaintiff was involved in collision. This case also had very interesting evidence regarding an eye witness not coming forward until months after the accident as well as evidence of plaintiff's potential alcohol intoxicaation at the time of the collision. Prior to a second trial the parties were able to negotiate a settlement.
Klem v. Mann
279 Ill. App. 3d 735, 665 N.E. 2d 514 (1996)
this cases concerns a group health plan's attempt to recover some of the money it paid for medical expenses incurred by a six year old after he was hit by a car. In Count I of the complaint the parents of the six year old sought damages for the injuries their child sustained, and in Count II the parents in their indivdual capacities sought damages for medical expenses under the Family Expense Act. As trial approached plaintiff's attorney dismissed Count II of the complaint and accepted the policy limits on behalf of the defendant motorist. Anchor HMO then filed an intervening petition claiming that it had a valid lien on the settlement proceeds as a result of medical expenses that it had paid on behalf of the injured child. The trial court after a hearing on Anchor HMO's intervening petition adjudicated the amount to $0. Anchor HMO filed an appeal to seek reversal of the trial court's ruling adjudicating the lien to
$0.
The Appellate Court in its opinion affirming the trial court's ruling with respect to Anchor lien stated: "When the case against Mann was settled, the count asking for damages on Andrew"s behalf was the only remaining count. The settlement was for the benefit of Andrew's estate. A firm line of appellate cases has established the rule that subrogation liens against minors' estates are not valid." Accordingly by dismissing Count II of the complaint, we were able to prevent the HMO from securing any money from the minor's settlement funds.
Ward v. Mid American Energy Company
313 Ill. App. 3d 258, 729 N.E. 2d 861 (2000)
Special Administratrices of deceased minor's estates sued the owner of a dam near the area where the minors drowned, alleging that the owner was negligent in failing to place or maintain warning signs regarding dangerous underwater currents. The defendant filed a motion to dismiss pursuant to 735 ILCS 5/2-615 attacking the legal sufficiency of the complaint. Under Illinois law persons who own , occupy, or control and maintain land are not ordinarily required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious. Generally a body of water is deemed to present an open and obvious danger.
In this case four teenage boys were playing ball along the banks of a tail race, the water downstream from a dam, when the ball went into the water. Two of the boys entered the water to retreive the ball and were pulled down by dangerous underwater currents that plaintiffs allege were created by the upstream hydoelectrical facility. The boys ultimately drowned and their families filed wrongful death actions against the energy company that owned and operated the dam, alleging that the failed to post warning signs in the area warning of the dangerous underwater currents that they creaated. The families also alleged that there had been prior drownings at this location.
The Appellate Court held that: "...liability may attach for injuries caused by hazards in bodies of water where the hazard: (1) could not be detected; (2) was not an "inherent characteristic" of bodies of water; and (3) stemmed solely from the defendant's conduct. The allegatioons of plaintiff's complaint, viewed in the light most favorable to plaintiffs, satisfy these criteria. The Appellate Court reversed the trial court's dismissal and remanded the case to the trial court.
