Sheppard v. Krol

• Decision Date: 02 August 1991
• Docket Number: No. 1-89-0397,1-89-0397
• Citation: Sheppard v. Krol, 218 Ill.App.3d 254, 578 N.E.2d 212, 161 Ill.Dec. 85 (Ill. App. 1991)
• Parties: , 161 Ill.Dec. 85 Danny SHEPPARD, Plaintiff-Appellant, v. Frederic B. KROL, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 212

578 N.E.2d 212

218 Ill.App.3d 254, 161 Ill.Dec. 85

Danny SHEPPARD, Plaintiff-Appellant, v. Frederic B. KROL, Defendant-Appellee.

No. 1-89-0397.

Appellate Court of Illinois First District, Sixth Division.

Aug. 2, 1991.

Lane & Munday and Frank Leonard LaPort & Associates, Ltd., Chicago, for plaintiff-appellant.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (D. Kendall Griffith, Thomas L. Browne and Mark M. Christerson, of counsel), for defendant-appellee.

Justice LaPORTA delivered the opinion of the court:

Plaintiff brought suit against defendant alleging legal malpractice due to negligent representation. On defendant's motion the trial court dismissed his first amended complaint with prejudice for failure to state a cause of action. Plaintiff appealed.

In his first amended complaint, plaintiff alleged that in the course of his employment with Jay's Foods, Inc., he was required to operate a certain forklift truck. He alleged that on September 6, 1983, while he was standing in close proximity to it, the unattended forklift with motor running suddenly changed gears from neutral to reverse and struck him causing his injuries. Plaintiff alleged that the forklift was defective and unreasonably dangerous as a result of a design or mechanical defect present when purchased by Jay's Foods and was defective and unreasonably dangerous immediately prior to striking him "in that the transmission would shift from neutral to reverse when the motor of said forklift was running and the forklift was left unattended." He alleged he suffered severe and permanent injuries as a result of the accident and therefore contracted with defendant to act on his behalf for both a worker's compensation claim and a product liability claim. Defendant's conduct with regard to the worker's compensation claim is not at issue in this case.

Plaintiff's complaint alleged further that defendant undertook to represent him as his attorney in the personal injury suit and agreed "to investigate and process a product liability claim against the manufacturer or seller of the forklift" and therefore it was his duty to exercise ordinary care and caution in the legal representation of plaintiff. Plaintiff alleged that defendant breached his duty to plaintiff by carelessly and negligently: (a) failing to ascertain the identity of the forklift truck; (b) failing to retain a mechanical engineer or other expert to inspect the forklift; (c) failing to institute legal proceedings against the manufacturer or seller of the forklift; (d) failing to impound the forklift; (e) failing to properly investigate the circumstances of plaintiff's injuries to determine the manufacturer of the forklift; and (f) failing to identify, preserve and inspect the forklift.

Plaintiff alleged that as a direct and proximate result of defendant's action the forklift "was destroyed, sold or otherwise disposed of by Jay's Foods, Inc." and it became "impossible to ascertain the make, manufacturer, seller or mechanical condition of the forklift that was involved in plaintiff's injury." Plaintiff alleged that but for defendant's negligence, plaintiff would have had legal grounds for a cause of action against the manufacturer or seller of the forklift.

Defendant moved to dismiss the first amended complaint at law on July 9, 1987, contending that plaintiff could not succeed in the malpractice action because he did not plead and could not prove he would have prevailed in a product liability action "but for" the negligence of his attorney. On October 5, 1987, the trial judge granted defendant's motion and dismissed the suit with prejudice. The court subsequently denied plaintiff's motion to reconsider and plaintiff appealed.

On appeal plaintiff presents the following issues: (1) did plaintiff state a cause of action for legal malpractice where plaintiff charged defendant with negligently failing to ascertain the identity of the manufacturer of a defective product, which caused plaintiff's injury, before the product was disposed of by its owner; (2) did plaintiff plead an underlying cause of action; and (3) is plaintiff required to plead the identity of defendant in the underlying cause of action and the specific defect in the forklift on which that action is based.

In any legal malpractice action, a plaintiff must plead the existence of a valid underlying cause of action. (Claire Associates v. Pontikes (1986), 151 Ill.App.3d 116, 104 Ill.Dec. 526, 502 N.E.2d 1186.) Four elements must be alleged and proven: (1) the existence of an attorney-client relationship that establishes a duty on the part of the attorney; (2) a negligent act or omission that breached that duty; (3) proximate cause that establishes that but for the attorney's negligence, plaintiff would not have suffered an injury; and (4) damages. Pelham v. Griesheimer (1982), 92 Ill.2d 13, 64 Ill.Dec. 544, 440 N.E.2d 96.

Because a plaintiff must establish that but for the attorney's negligence he would have been successful in the underlying action, plaintiff is essentially required to prove a case-within-a-case; specifically, establishing a prima facie product liability case and then proving it in order to prove the legal malpractice case. (Cook v. Gould (1982), 109 Ill.App.3d 311, 314, 64 Ill.Dec. 896, 440 N.E.2d 448.) This is required because of the damages element of the action; no malpractice exists unless counsel's negligence has resulted in the loss of an underlying action. Claire Associates, 151 Ill.App.3d at 122, 104 Ill.Dec. 526, 502 N.E.2d 1186.

Therefore, we must consider whether plaintiff's legal malpractice complaint alleged the facts to establish he not only had a valid product liability cause of action, but that he would have been successful in that cause. To establish a prima facie case for strict liability in a product liability action, a plaintiff must show that: (1) his injuries or damages resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the manufacturer's control. Suvada v. White Motor Coach (1965), 32 Ill.2d 612, 210 N.E.2d 182, 188.

Plaintiff contends that his legal malpractice action properly stated a cause of action for product liability. Plaintiff argues that his legal malpractice complaint alleged he was injured by a forklift and that the forklift was defective and unreasonably dangerous as a result of a mechanical defect. The three other requisite factors alleged in plaintiff's first amended complaint include plaintiff contracting with defendant to represent him, defendant's failure to identify the manufacturer of the forklift and concludes that "but for" defendant's action, plaintiff would have "obtained compensation from the manufacturer or seller." On a motion to dismiss, the trial court must accept as true all well pleaded facts. Bishop v. Ellsworth (1968), 91 Ill.App.2d 386, 234 N.E.2d 49.

Plaintiff contends that these facts alone are enough to permit his legal malpractice action to go to trial. Plaintiff argues that he should not be required to identify the manufacturer of the forklift in his complaint because it was defendant's negligence that prevented the manufacturer from being discovered. Plaintiff argues that to dismiss his complaint at the pleading stage would prevent him from conducting the proper discovery to see if the manufacturer could be established. The mere fact that the forklift has been or may have been destroyed is not a bar to a negligence action. Mote v. Montgomery Ward (1984), 125 Ill.App.3d 839, 81 Ill.Dec. 7, 466 N.E.2d 593; Renfro v. Allied Industrials (1987), 155 Ill.App.3d 140, 107 Ill.Dec. 844, 507 N.E.2d 1213.

Defendant concedes that plaintiff's complaint establishes that an attorney-client relationship existed and that defendant breached his duty to his client. But defendant contends plaintiff's complaint does not allege proximate cause; i.e. "but for" the negligence of the attorney plaintiff would have been successful in the underlying cause of action.

Defendant contends that plaintiff failed to meet the proximate cause requirement in three specific ways and that failure prevents plaintiff from succeeding in his legal malpractice case. First, plaintiff has alleged no facts to establish defendant could have identified the forklift involved in his accident. Second, plaintiff failed to plead facts that establish that "but for" the attorney's conduct he would have been successful in his product liability action. Third, plaintiff failed to allege facts to establish that a judgment against a manufacturer would have been collectible.

Initially, defendant contends that plaintiff alleges no facts that establish defendant could have identified the forklift which caused the injury even given the opportunity. The record establishes that before the dismissal of plaintiff's...