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FIRST DIVISION
September 20, 2004
(Nunc Pro Tunc May 18, 2004)

No. 1-03-2854

 

Plaintiff John Berry filed a complaint in the circuit court of Cook County, seekingrecovery from Electrolux Home Products, Inc., and Sears Roebuck and Company for injuries hisson Kyle Berry received in a lawn tractor accident at the Berry family home in Michigan. Electrolux filed, and the circuit court denied, a motion to dismiss the case from Cook Countyunder the doctrine of forum non conveniens. Electrolux petitioned this court for leave to appealunder Supreme Court Rule 306(a)(2). 166 Ill. 2d R. 306(a)(2). We granted the petition and nowaffirm the judgment of the circuit court.

In 2001, Kyle, then a toddler, was injured when his mother ran over him while operating alawn tractor designed and manufactured by Electrolux and sold by Sears. Electrolux has itsprincipal place of business in Ohio. The lawn tractor was manufactured in South Carolina andpurchased in Michigan. Sears is based in Cook County, Illinois.

The Berrys filed their amended complaint in Cook County in 2003, naming Sears andElectrolux as defendants. Earlier, Sears had filed a motion to dismiss the action on forum nonconveniens grounds, but the trial court denied the motion and Sears did not appeal. Electroluxthen filed its own motion to dismiss based on forum non conveniens, arguing that either Michiganor South Carolina was a better forum.

The trial court denied Electrolux's motion in a written memorandum opinion and order,concluding "[Electrolux] has not met its burden as the relevant factors for consideration whenviewed in their totality, do not strongly favor the suggested forums." The judge wrote, "[w]hilemost if not all the occurrence witnesses do reside in Michigan, several hundred miles from thiscourthouse, this product liability action will require the testimony of many experts andrepresentatives of manufacturers who reside in neither Illinois [nor] Michigan." The judge notedthat although the accident occurred in Michigan, both Sears and Electrolux conduct business andsell lawn tractors in Cook County, Illinois. The judge considered the fact that a trial in Illinoiswould preclude the jury viewing the accident site, but determined the problem was surmountablebecause the lawn tractor could be transported to Cook County for the jury to view. The trialjudge conceded that some factors weighed against a trial in Cook County. She considered thatthe Illinois court would be required to apply Michigan law and that the Cook County docket ismore congested than the dockets in Michigan, but she concluded that those factors did notstrongly favor dismissal when viewed under the totality of the circumstances.

A trial court has broad discretion in granting or denying a motion for dismissal on thegrounds of forum non conveniens. Ferguson v. Bill Berger Associates, Inc., 302 Ill App. 3d 61,70, 704 N.E.2d 830 (1998). The task of the reviewing court is to determine only if the trial courtabused its discretion. Ferguson, 302 Ill. App. 3d at 70. A court abuses its discretion when noreasonable person would share its view. Ferguson, 302 Ill. App. 3d at 70.

On appeal, Electrolux argues that "a reasonable balancing of private and public interests inthis case firmly establishes that this dispute properly belongs before a Michigan court."

Under section 2-101 of the Code of Civil Procedure (Code), an action generally must becommenced: (1) in the county of residence of any defendant who is joined in good faith or (2) inthe county where the cause of action arose. 735 ILCS 5/2-101 (West 2000). If more than onepotential forum exists, the equitable doctrine of forum non conveniens may be invoked todetermine the most appropriate forum based on fairness and convenience. Griffith v. MitsubishiAircraft International, Inc., 136 Ill. 2d 101, 105, 554 N.E.2d 209 (1990).

The doctrine of forum non conveniens allows "a trial court to decline jurisdiction in theexceptional case where trial in another forum with proper jurisdiction and venue 'would betterserve the ends of justice.' " First American Bank v. Guerine, 198 Ill. 2d 511, 515, 764 N.E.2d 54(2002), quoting Vinson v. Allstate, 144 Ill. 2d 306, 310, 579 N.E.2d 857 (1991).

The private interests of the plaintiff are to be considered. Guerine, 198 Ill. 2d at 517. Theplaintiff's choice of forum is entitled to deference because he or she "has a substantial interest inchoosing the forum where his [or her] rights will be vindicated." Guerine, 198 Ill. 2d at 517. Theplaintiff's choice of forum rarely should be disturbed unless the circumstances strongly favor thedefendant's choice. Guerine, 198 Ill. 2d at 517. Where, as here, the plaintiff does not live in andthe accident did not occur in the chosen forum, the plaintiff's choice of forum "receives somewhatless deference." (Emphasis added.) Guerine, 198 Ill. 2d at 517. As the trial judge stated in herwritten opinion, "less deference does not equate with no deference." (Emphasis in original.)

The private interests to be considered include: "(1) the convenience of the parties; (2) therelative ease of access to sources of testimonial, documentary, and real evidence; and (3) all otherpractical problems that make trial of a case easy, expeditious, and inexpensive *** [including] theability to view the premises (if appropriate)." Guerine, 198 Ill. 2d at 516. The public interests tobe considered include: "(1) the interest in deciding localized controversies locally; (2) theunfairness of imposing the expense of a trial and the burden of jury duty on residents of a countywith little connection to the litigation; and (3) the administrative difficulties presented by addingfurther litigation to court dockets in already congested fora." Guerine, 198 Ill. 2d at 516-17.

None of these factors is dispositive and the trial court must evaluate the totality of thecircumstances to determine whether the balance of the factors strongly favors transfer. Guerine,198 Ill. 2d at 518.

Here, it is clear from the memorandum opinion and order that the trial judge consideredthe appropriate private and public factors and concluded that the factors did not weigh so stronglyin favor of another forum that the matter should not be heard in Cook County. An action may beinitiated in the county of residence of any defendant joined in good faith under section 2-101 ofthe Code. 735 ILCS 5/2-101 (West 2000). Sears is such a defendant and is resident in CookCounty. Cook County is an appropriate venue for this case.

Electrolux argues on appeal, as it did before the trial court, that Dawdy v. Union PacificR.R. Co., 207 Ill. 2d 167, 797 N.E.2d 687 (2003), requires this trial to be held outside CookCounty. In Dawdy, an intrastate venue case, the supreme court determined that the circuit courtabused its discretion when it denied Union Pacific's motion to transfer the case from the Dawdy'schosen forum in Madison County. Dawdy, 207 Ill. 2d at 185. Union Pacific wanted the trial tobe held in the adjacent Macoupin County, where the traffic accident at issue occurred. Dawdy,207 Ill. 2d at 185. In addition to weighing the public and private interest factors established inearlier cases (Dawdy, 172 Ill. 2d at 172-73), the supreme court addressed the issue of forumshopping, a practice not favored by the courts (Dawdy, 172 Ill. 2d at 174). While the supremecourt based its reversal in Dawdy on the fact that none of the witnesses resided in MadisonCounty and Macoupin County had a predominant connection to the case, it held, "where thepotential trial witnesses are scattered among several counties, including the plaintiff's chosenforum, and no single county enjoys a predominant connection to the litigation, the plaintiff maynot be deprived of his or her chosen forum." Dawdy, 206 Ill. 2d at 184, citing Guerine, 198 Ill.2d at 526.

Here, potential trial witnesses are scattered among several states, including Illinois. Nosingle jurisdiction enjoys a predominant connection to the litigation and, under Dawdy andGuerine, the Berrys may not be deprived of their chosen forum. While at first glance Michiganmay appear to be more convenient, after considering the totality of the circumstances we cannotsay that the trial court reached an unreasonable conclusion in allowing the Berrys to remain intheir chosen forum. The judgment of the trial court is affirmed.

Affirmed.

CAHILL, J., with WOLFSON, P.J., and GARCIA, J., concurring.