Botello v. Illinois Cent. R. Co.

• Decision Date: 26 April 2004
• Docket Number: No. 1-03-0314.,1-03-0314.
• Citation: 809 N.E.2d 197,348 Ill. App.3d 445,284 Ill.Dec. 75
• Parties: Jamie BOTELLO, Plaintiff-Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, an Illinois Corporation, Richard Stickler and David Hendrix, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

809 N.E.2d 197

348 Ill. App.3d 445

284 Ill.Dec. 75

Jamie BOTELLO, Plaintiff-Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, an Illinois Corporation, Richard Stickler and David Hendrix, Defendants-Appellants.

No. 1-03-0314.

Appellate Court of Illinois, First District, First Division.

April 26, 2004.

James A. Fletcher & Colleen Konicek, Fletcher & Sippell, LLC, Chicago, for Appellants.

Paul M. McMahon, Costello, McMahon & Burke, Ltd., Chicago, for Appellees.

Justice GORDON delivered the opinion of the court:

In this permissive interlocutory appeal taken pursuant to Supreme Court Rule 306 (155 Ill.2d R. 306), defendants, Illinois Central Railroad, Richard Stickler and David Hendrix, appeal from the circuit court's order denying their motion to transfer this case based on the doctrine of forum non conveniens. Defendants sought to transfer this case from the circuit court of Cook County to the circuit court of DuPage County. Defendants claim that the trial court erred in rejecting their affidavit, in that the rejection was contrary to Illinois law and inconsistent with Supreme Court Rule 187 (134 Ill.2d R. 187). Defendants further claim that the trial court abused its discretion in denying the motion to transfer this case to the circuit court of DuPage County because the private and the public interest factors heavily weigh in favor of transfer. Although plaintiff has not filed a brief in this court, we will consider the appeal pursuant to the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 345 N.E.2d 493 (1976). For the following reasons, we reverse the order of the trial court.

BACKGROUND

On November 11, 2000, plaintiff, a resident of DuPage County, was injured when he was struck by a train while lying between the rails of the train track. The accident occurred near "west North Avenue" in Addison, DuPage County. On October 31, 2002, plaintiff filed a lawsuit against defendants, Illinois Central Railroad Company (hereinafter referred to as IC), Richard Stickler, and David Hendrix in the circuit court of Cook County. In his complaint, plaintiff alleged the train that struck him was owned by IC and operated by Stickler and Hendrix. Plaintiff further claimed that defendants were negligent in failing to keep a proper lookout, failing to engage the emergency brake in a timely manner, failing to sound the train's whistle in a timely manner, failing to operate the train at a safe speed and failing to properly supervise and train employees.

On December 12, 2002, defendants filed a motion to transfer the case from the circuit court of Cook County to the circuit court for the Eighteenth Judicial Circuit, DuPage County, based upon Supreme Court Rule 187 and the doctrine of intrastate forum non conveniens. Defendants argued that the circuit court of DuPage County was the more convenient forum for all parties. Defendants further argued that both the private interest and the public interest factors weighed heavily in favor of the case being decided in the circuit court of DuPage County. In support of their contention that the private interest weighed heavily in favor of a transfer, defendants filed a memorandum of law and an uncontested affidavit executed by a representative of codefendant, Illinois Central Railroad Company. In support of their contention that the public interest factors weighed heavily in favor of a transfer, defendants filed an exhibit showing the time lapse between the date of filing to the date of verdict for cases filed in the circuit court of Cook County and those filed in the circuit court of DuPage County.

The affidavit filed in support of the private interest factors was executed by Donald E. Corp, the risk manager for IC and Chicago, Central and Pacific Railroad (hereinafter referred to as CCP). The affidavit stated that as part of Mr. Corp's job responsibilities he was required to investigate claims asserted against IC and CCP. As a result, he arrived at the scene of the accident, conducted an investigation at the accident site and at the hospital, and reviewed documents kept in the ordinary course of business relating to plaintiff's claim. Based on this investigation, Corp stated he was familiar with plaintiff's claim. However, none of the documents Corp relied on were authenticated or attached to the affidavit.

The affidavit recited that the train in question was owned by CCP, a corporate affiliate of IC with headquarters in Waterloo, Iowa, and was operating on a track owned by CCP. The crew operating the train consisted of Hendrix, the engineer, and Stickler, the conductor, each of whom work for CCP. Both Stickler, who resides in LaPorte City, Iowa, and Hendrix, who resides in Cedar Falls, Iowa, reported to work at CCP's terminal in Waterloo, Iowa. At the time of the accident, the train was heading westbound to Waterloo, Iowa.

The affidavit stated that the train involved in the accident was equipped with an event recorder, which electronically records information concerning the operation of the train. Following the accident, the supervisor of the train engineers, Doyle Cowles, downloaded the information from the event recorder. Cowles resides in Hudson, Iowa, and works for CCP at its Waterloo terminal.

The affidavit further stated that three police officers from the Addison police department in DuPage County responded to the accident: C. Pope, Scott Sullivan and Angelo Denofrio. Officers Pope, Sullivan and Denofrio investigated the accident and made written reports of their investigation, which are maintained by the department at its office in Addison located in DuPage County.

Additionally, the affidavit outlined that plaintiff was attended to at the scene by paramedics from the Villa Park fire department located in DuPage County. The paramedics then transported plaintiff to Good Samaritan Hospital located in Downers Grove in DuPage County. He was treated at the hospital by doctors on the hospital staff, including Dr. Satarno. Upon release from the hospital, plaintiff received follow-up treatment from Dr. Steven S. Louis of Hinsdale Orthopaedics in Hinsdale located in DuPage County.

Lastly, the affidavit stated that, "based on his review of the records," the affiant believed that aside from plaintiff, the persons identified in the affidavit had knowledge of the facts relating to the accident and would be called to testify at any trial of this case, and that the affiant was not aware of any witnesses who resided in Cook County or of any physicians who provided treatment to plaintiff in Cook County. The affidavit went on to state that CCP would incur "significantly more expense" if this matter was tried in Cook County versus DuPage County and that it would be more convenient for CCP, the witnesses, and even plaintiff, if the case were tried in DuPage County.

With their motion to transfer the case, defendants included a time lapse exhibit to support their argument that the public interest factors also favored a transfer of the case to DuPage County. More specifically, the time lapse exhibit showed the statistics from the Administrative Office of Illinois Courts for the year 2000. However, we note that the trial court, in its opinion, provided the statistics from the Administrative Office of Illinois Courts for the year 2001. The 2001 statistics showed that there were 535 jury verdicts for over $50,000 in Cook County, with an average time from filing to verdict of 38.1 months. In contrast, DuPage County had 49 such cases with an average time from filing to verdict of 28.2 months.

On December 20, 2003, the parties in this case appeared before the trial court on defendants' motion. The trial court inquired whether defendants required written discovery prior to the ruling on the motion, but defendants advised that the motion was being submitted "as is." Therefore, the trial court advised plaintiff that a formal response to the motion would not be necessary.

On January 10, 2003, the trial court issued its order denying defendants' motion without benefit of a response or affidavit from plaintiff as to whether the contentions raised by defendants in support of transfer were in dispute. In denying the motion, the trial court ruled that Corp's affidavit did not meet the requirements of Illinois Supreme Court Rule 191(a). Official Reports Advance Sheet No. 8 (April 17, 2002), R. 191(a), eff. July 1, 2002. In that regard, the court stated that Corp relied on documents kept in the ordinary course of business; however, no such documents were authenticated and attached to the affidavit. Therefore, the court concluded, any averments set forth in the affidavit were based upon hearsay documents and would not be admissible statements even if Corp was called as a witness. As a consequence, the trial court concluded that defendants failed to provide any evidence supporting their motion to transfer. Alternatively, the trial court ruled that even if Corp's affidavit were considered, defendants had still failed to show that the balance of private interest and public interest factors favored a transfer to DuPage County.

On February 10, 2003, defendants filed a petition for leave to appeal the decision of the trial court denying the motion to transfer. This court granted the petition for leave to appeal pursuant to Supreme Court Rule 306 (166 Ill.2d R. 306).

On appeal, defendants contend that the trial court abused its discretion in denying the motion to transfer based on the doctrine of forum non conveniens.

ANALYSIS

Sufficiency of Affidavit

Defendants first contend that the trial court abused its discretion by imposing a requirement for affidavits filed in support of a motion to transfer based on the doctrine of forum non conveniens that is contrary to Illinois law and inconsistent with Supreme Court Rule 187 (134 Ill.2d R. 187). In this regard, the trial court found that the affidavit submitted by defendants did not meet the requirements set...