Cook v. Gould

• Decision Date: 23 September 1982
• Docket Number: No. 82-16,82-16
• Parties: , 64 Ill.Dec. 896 Calvin COOK, Plaintiff-Appellant, v. Burton D. GOULD, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 448

440 N.E.2d 448

109 Ill.App.3d 311, 64 Ill.Dec. 896

Calvin COOK, Plaintiff-Appellant, v. Burton D. GOULD, Defendant-Appellee.

No. 82-16.

Appellate Court of Illinois Third District.

Sept. 23, 1982.

Mark L. Schwartzman, Rosenfeld, Rotenberg, Schwartzman, Hafron & Shapiro, Chicago, Thomas R. Wilson, Herschbach, Tracy, Johnson, Bertani & Wilson, Joliet, for plaintiff-appellant.

James E. Garrison, Garrison, Fabrizio & Hanson, Ltd., Joliet, for defendant-appellee.

HEIPLE, Justice:

This appeal involves attorney malpractice. The plaintiff, Calvin Cook, seeks damages occasioned by the negligence of Burton Gould, his former attorney, in failing to file Cook's personal injury claim against the city of Joliet within the statutory period of limitations.

Cook's claim against the city of Joliet stems from injuries he received as a result of a motorcycle accident. Late on the evening of August 10, 1974, Cook encountered a large oil slick in the middle of Collins Street, Joliet, Illinois. The motorcycle he was riding slid out from under him causing him injury. Shortly thereafter, Cook retained defendant Gould to represent him in a suit for the damages he sustained as a result of the accident. Defendant Gould undertook the representation but failed to institute a lawsuit within the statutory period. Nearly ten months after the statute had expired, Burton Gould notified Cook that he had attempted to file suit but the papers were lost and never received by the Clerk of the Circuit Court of Will County. Gould further informed Cook that this prejudiced his suit and there was nothing further that he could do for him regarding his claim against the city of Joliet.

Soon thereafter, Cook obtained his present counsel and instituted the instant action against Burton Gould for legal malpractice seeking $125,000, the loss of value of his claim negligently prosecuted by Gould. Prior to trial, defendant Gould admitted liability as to all issues except the issue of proximate cause. Gould specifically denied any proximate cause between his negligence and any actual loss to Cook. Attorney Gould's point is that Cook's case against the city of Joliet was worthless. And that since the case was worthless, Cook suffered no loss when Attorney Gould permitted the statute of limitations to expire without filing suit.

Subsequently, defendant Gould filed a motion in limine to preclude Cook from introducing any evidence or testimony regarding the manner of the breach of duty since Gould already admitted his duty and breach thereof in failing to timely file the lawsuit against the city of Joliet. Plaintiff Cook was barred from introducing evidence as to the nature of defendant Gould's negligence in the handling of Cook's claim. Thus, the trial court stated, the malpractice case would be decided solely on the merits of the original cause of action against the city of Joliet.

Plaintiff Cook moved that the court shift the burden of proof of the meritorious nature of the original cause from himself to Gould to show the cause as non-meritorious, since an attorney-client relationship existed and Gould admittedly failed to file Cook's cause of action within the statute of limitations. This motion was denied by the court as being contrary to the recognized law in Illinois.

The case proceeded to trial. The evidence on the underlying claim showed that Cook was traveling north on Collins Street in Joliet, Illinois, on his motorcycle between midnight and 1 a.m. on August 10, 1974. In the 600 block of North Collins Street, Cook encountered an oil spill on the pavement and his motorcycle skidded out from under him. Cook had his headlights on, was not speeding, and had no warning of the oil slick. Shortly after 9 p. m. on August 9, 1974, a tanker truck was seen leaking oil on Collins Street in the vicinity of the accident. The witness who testified that he saw the tanker leaking oil stated that he did not call the city or anyone to report the oil spill.

The police officer investigating the accident recalled that the oil slick was approximately 50 to 75 feet long, but could not remember the width of the slick. He testified that it was his responsibility on the night in question to patrol Collins Street. His patrol car was the only one in the area that evening and that he came on duty at 11 p. m. on August 9, 1974. While it was his custom to travel Collins Street several times during the evening because that street was heavily traveled, he could not recall whether he made any trips up or down Collins Street prior to the accident on the night in question. When he was called to the scene following the accident, the oil slick had to be pointed out to him. Prior to the call to investigate Cook's motorcycle accident, the police did not receive any calls regarding the oil slick.

At the close of the plaintiff's case, the defendant presented his oral motion for a directed verdict. After argument the court sustained the motion on the grounds the city of Joliet did not have actual or constructive notice of the oil on the street in question. The plaintiff Cook appeals.

Initially, Cook claims that the trial court erred when it refused to shift the burden of proof to the defendant to show the underlying cause of action was not meritorious. Cook concedes that the established law in Illinois is that he, as plaintiff, has the burden of proving the existence of an attorney-client relationship and that his claim would have been successful had it not been for the negligence of the attorney. (Priest v. Dodsworth (1908), 235 Ill. 613, 85 N.E. 940.) Cook urges this court, however, to modify the rule for cases where the cause of action is lost through the failure of the attorney to file the cause of action within the applicable statute of limitations. In such cases he urges that we require the negligent attorney to show that the underlying action was not meritorious and would not have been successful even if the suit...