Hough v. Weber, 2-90-0508

Decision Date30 August 1990
Docket NumberNo. 2-90-0508,2-90-0508
Citation147 Ill.Dec. 857,560 N.E.2d 5,202 Ill.App.3d 674
Parties, 147 Ill.Dec. 857 Mary Ann HOUGH, Plaintiff-Appellee, v. Gail WEBER, et al., Defendants-Appellants.
CourtUnited States Appellate Court of Illinois

Page 5

560 N.E.2d 5
202 Ill.App.3d 674, 147 Ill.Dec. 857
Mary Ann HOUGH, Plaintiff-Appellee,
v.
Gail WEBER, et al., Defendants-Appellants.
No. 2-90-0508.
Appellate Court of Illinois,
Second District.
Aug. 30, 1990.

Page 8

[202 Ill.App.3d 676] [147 Ill.Dec. 860] Klein & Brady, Gallagher, Jack C. Slingerland, Dekalb, for Gail Weber, Earl Hough, Holly Hough.

Paul E. Gaziano, Rockford, for Mary Ann Hough.

Justice INGLIS delivered the opinion of the court:

Plaintiff, Mary Ann Hough, filed suit to prevent the disinterment of the remains of her husband, John W. Hough. The disinterment was being sought by the husband's adult children, defendants Gail Weber, Earl Hough, and Holly Hough. The Winnebago County Health Department and Joseph Orthoefer in his capacity as local registrar and public health administrator were also named as defendants. After a hearing, the trial court issued a preliminary injunction enjoining the defending children from seeking the disinterment of John Hough's remains and also enjoining Orthoefer and the Health Department from issuing a permit authorizing the disinterment of his remains. Thereafter, defendant children filed a motion for rehearing and a motion to preserve the evidence, both of which were denied. The children timely appeal raising the following issues: (1) whether defendants' right to due process of law was violated when the trial court granted a preliminary injunction rather than a temporary injunction; (2) whether plaintiff's complaint was insufficient as a matter of law to justify the exercise of the extraordinary remedy of injunctive relief; (3) whether plaintiff sustained her burden of proof at the hearing as to the elements necessary to prove entitlement to injunctive[202 Ill.App.3d 677] relief; and (4) whether the trial court erred in denying defendant's motion to preserve evidence. We affirm.

On August 13, 1989, at 3:11 p.m., John W. Hough, a 63-year-old man, died at SwedishAmerican Hospital in Rockford, Illinois. An autopsy was requested by the Winnebago County coroner's office and the family of the deceased. Dr. Robert Carlovsky performed the autopsy the following day on August 14, 1989. According to his report, John Hough's wife, Mary Ann, had claimed that John had been working out in the yard on the day of his death. At approximately 12:45 p.m. he reportedly came in to eat lunch and was feeling fine. At about 2 p.m., Mary Ann found him lying on the kitchen floor, unresponsive. The paramedics were called and resuscitative measures were initiated. John was transported to the hospital where a "code blue" continued; however, he did not respond and was pronounced dead at 3:11 p.m. John's blood alcohol at the time of death was .253%.

The autopsy performed by Dr. Carlovsky revealed that John had bruises on his legs and his forehead. Several of his posterior and anterior ribs were fractured; one of the broken ribs was pushed into his lung causing the lung to deflate. John's liver had a large laceration measuring 8 by 12 centimeters and approximately 3 centimeters deep. Dr. Carlovsky concluded that in his opinion John Hough died of complications secondary to his fractured ribs with perforation of the right lung and laceration of the liver. He commented that, secondarily, John had hemopneumothorax and hemoperitoneum. Carlovsky opined that the injuries from which John suffered were consistent with a fall.

John Hough's mortal remains were buried at Greenwood Cemetery in Rockford, Illinois, in August 1989. On September 1, 1989, defendant Gail Weber contacted the chief deputy coroner for Winnebago County, Ronald A. Canode, about some questions she had regarding her father's death.

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[147 Ill.Dec. 861] A follow-up investigation was then initiated. The paramedics that were at the scene told Canode that John Hough was found clothed wearing only a pair of pajama bottoms, the top of which was down around the knee area and both his legs were in a single pajama leg. Canode stated that John was conscious when the paramedics arrived. The paramedics asked John what his problem was, and he responded that he was having problems breathing but that he did not have any pain. His condition then rapidly deteriorated.

Ronald Canode contacted the Rockford police department on September 14, 1989, requesting them to accompany him back to the [202 Ill.App.3d 678] Hough residence to speak to John's wife. When being questioned, Mary Ann stated that she could not recall anything unusual about her husband's dress at the time of the incident. She admitted that she had been drinking the day of his death, but no testing was done as to what extent. She claimed that John had made several trips up and down the basement stairs, which are located adjacent to the kitchen area. These stairs have a thin carpeting material on them, and there is a handrail on one side. Mary Ann claimed that at approximately noon, John was in the kitchen and she had talked to him. She left the kitchen to go to another part of the house and upon returning found John on the kitchen floor. John complained about his difficulty breathing, and Mary Ann called the paramedics. She reported that after returning from the hospital, she found a broken glass at the bottom of the stairs along with a rug that was normally in the kitchen entranceway at the top of the stairs.

Canode reported that John maintained an alcoholic beverage bottle downstairs in the basement located in the ceiling on top of a rafter. Canode stated that John would go at intervals down to the basement and partake of the hidden alcohol.

Secondary opinions were sought. Dr. L.W. Blum, a forensic pathologist from Elgin, Illinois, opined that John Hough suffered a fall down the stairs leading from the kitchen to the basement. Dr. Blum found the injury pattern to be consistent with the mechanism of a fall. He opined that John "could have climbed up the stairs after sustaining the above noted injuries, where becoming weak and apparently confused, he collapsed to the kitchen floor, where he, complaining of shortness of breath, was subsequently discovered by his wife." Dr. Blum concluded that it was unlikely that the injuries were received from a beating due to their location, size and general appearance. He stated, "[t]he lack of defensive wounds, lack of patterned injuries * * *, lack of significant internal injuries in different regions of the body, and lack of a statement by Mr. Hough to the first medical responders other than a complaint of being short of breath, render an opinion of death by a beating tenuous and speculative."

Dr. Thomas T. Noguchi, a forensic pathologist from Pasadena, California, opined that the laceration of the liver was caused by a "massive blunt force" which could not be attained by bumping up against a table or kitchen appliance. He stated that the force "requires greater speed and a mass of the weight." Dr. Noguchi explained "this type of massive injury to the liver is usually seen in cases of automobile vs. pedestrian accident or a fall from a greater hight [sic ]. In some instances, the force could be delivered from kicking[202 Ill.App.3d 679] or stumping [sic ] while the victim is laying [sic ] on the ground." Noguchi stated that photographs of the scene reveal no object which would protrude or be strong enough to cause injuries of crushing force as described in the autopsy report. Because severe crushing injury would be unlikely, Noguchi ruled out a fall down the stairs as the cause of injury. Noguchi noted the color of one of the bruises found on John indicated that it was at least a few hours old; thus, the doctor concluded that the crushing injury must have occurred a few hours prior to John being found on the kitchen floor.

Dr. Carley C. Ward, a biodynamic engineer from Pacific Palisades, California, opined that Mr. Hough could not have received the injuries from a fall down the

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[147 Ill.Dec. 862] basement stairs. Dr. Ward explained, "[s]uch a fall would have resulted in shoulder and hip contacts, not a single direct blow. There would not have been sufficient force to cause concentrated bruising in the lumbar area. In addition, the stairs were carpeted, and his body showed no evidence of rug burns." Dr. Ward concluded that "Mr. Hough's injuries are consistent with a fall from a second story or multiple heavy blows to the body, as in a beating. It is clear that the posterior rib fractures and the bruised trunk with the liver laceration were two separate contacts."

An inquest was held on December 6, 1989. The jury was given the letters containing the above opinions. In addition, Rich McLaughlin, the Winnebago County deputy coroner, was the first to testify. He stated that he was notified on August 13, 1989, at 3:30 p.m. by the emergency room supervisor at SwedishAmerican Hospital. McLaughlin was informed that there were some suspicious bruises on John's body. McLaughlin then talked with Mary Ann Hough. She told McLaughlin that she was not sure how John got the bruises. She said that John had been working out in the yard, that he came in for dinner and went downstairs to get a hammer and nails to put up some pictures or a plaque. Mary Ann said that she went in one of the front bedrooms of the house and, when she returned, she found John on the kitchen floor. He complained of troubled breathing, and she called the paramedics.

McLaughlin testified that after a blood sample was taken, he transported John's body to the morgue so that Dr. Carlovsky could perform the autopsy.

Dr. Carlovsky then testified to the findings he made from the autopsy and that his conclusion was that "this man had fallen and basically that he had fractured his ribs, the ribs perforated the lung, and when the lung perforated, it created a pneumothorax on that side. And he had some bleeding from those fractures, he had some bleeding[202 Ill.App.3d 680] from the liver, and basically he went into cardiac arrest, and he died." Carlovsky opined that the...

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